Brousseau v. Tucker

479 So. 2d 446
CourtLouisiana Court of Appeal
DecidedNovember 19, 1985
DocketCA-84-0914
StatusPublished
Cited by13 cases

This text of 479 So. 2d 446 (Brousseau v. Tucker) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brousseau v. Tucker, 479 So. 2d 446 (La. Ct. App. 1985).

Opinion

479 So.2d 446 (1985)

Peggy Ann BROUSSEAU
v.
Robert W. TUCKER, et al.

No. CA-84-0914.

Court of Appeal of Louisiana, First Circuit.

November 19, 1985.

*448 Robert D. Downing, Baton Rouge, for plaintiff-appellant Peggy Ann Brousseau.

James H. Morgan, Kenneth E. Barnette, Baton Rouge, for defendant-appellee National Union Fire Ins. Co.

Before EDWARDS, LANIER and JOHN S. COVINGTON, JJ.

LANIER, Judge.

This is a suit for damages in tort arising out of an automobile accident. After a trial, judgment was rendered against the insurer[1] for $6,303.63 with legal interest and costs. The plaintiff filed a motion for a new trial to introduce alleged newly discovered evidence and for a reconsideration of the damage award. After a hearing, the motion for a new trial was denied. Plaintiff then took this devolutive appeal. The insurer has not appealed or answered the appeal.[2]

FACTS

On Friday, September 5, 1980, at approximately 8:30 p.m., Peggy Ann Brousseau was operating her 1977 Dodge Aspen in the center lane on the westbound three lanes of Interstate 10 near the College Drive exit in East Baton Rouge Parish, Louisiana, when her vehicle was struck by an 18 wheel tractor-trailer owned by Long Mile Rubber Company (Long Mile) and being driven by its employee, Robert W. Tucker. Long Mile was a subsidiary of the Aegis Corporation. National Union Fire Insurance Company of Pittsburgh, Pennsylvania, provided liability insurance. The accident rendered Brousseau's vehicle a total loss. At the time of the accident, Brousseau was a second year medical student at L.S.U. Medical Center in New Orleans.

DENIAL OF NEW TRIAL

Brousseau contends the trial court committed error by not granting her a new trial on the issue of quantum. In the motion for new trial, she contended (1) the trial court "failed to properly weigh the psychological effects of the accident on Peggy Brousseau, as a medical student under severe academic pressure" and (2) she discovered "additional evidence, in that, plaintiff has undergone psychological testing and evaluation which indicates that the accident resulted in extreme anxiety which detrimentally affected plaintiff's grades and resulted in her dismissal from medical school" which deprived her of prospective earnings of $866,442.51.

In a judge trial, the granting of a new trial is peremptory only (1) when the judgment appears clearly contrary to the law and the evidence and (2) when a party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during trial. La.C.C.P. art. 1972. A party seeking a new trial on the ground of newly discovered evidence bears the burden of proving the following: (1) the evidence was discovered after the trial; (2) the evidence could not have been discovered prior to trial through the exercise of due diligence; and (3) the newly discovered evidence would tend to change the result of the first trial. Orlando v. Polito, 228 La. 846, 84 *449 So.2d 433 (1955); Succession of Budwah, 441 So.2d 39, 42 (La.App. 3rd Cir.1983); Baltzar v. Missouri Pacific Railroad, 406 So.2d 324 (La.App. 3rd Cir.1981); Cable v. Cazayou, 351 So.2d 797 (La.App. 1st Cir. 1977). Due diligence requires that a party do all that is reasonable to lead to the discovery of evidence. Barker v. Rust Engineering Company, 428 So.2d 391 (La. 1983). Otherwise, the granting of a new trial is within the discretion of the trial court. La.C.C.P. art. 1973; Charpentier v. Louisiana Land and Exploration Company, 415 So.2d 452 (La.App. 1st Cir.1982).

The trial court found as fact there was no causal nexus between the accident and Brousseau's dismissal from medical school. To determine if the trial court judgment is clearly contrary to the law and the evidence, we must review the evidence presented at the original trial; no new evidence is involved. Succession of Budwah, 441 So.2d at 42. The record herein is made up of testimony taken in court in the presence of the trial judge and depositions of witnesses taken out of his presence. In reviewing factual findings based on testimony adduced in open court, we must follow the clearly wrong (manifest error) standard of Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). When reviewing factual findings based on depositions, we must only determine the sufficiency and preponderance of the evidence. Hayes v. Commercial Union Assurance Company, 459 So.2d 1245 (La.App. 1st Cir.1984), writ denied, 462 So.2d 1247 (La.1985).

Brousseau testified at trial she received a BS degree in medical technology from L.S.U. in 1974. She unsuccessfully applied for admission to the L.S.U. Medical School in 1975, 1976, 1977 and 1978. In 1977, she enrolled full time at L.S.U. and worked on a masters in genetics. She started L.S.U. Medical School in the fall of 1979. During her first year in medical school, she had bronchitis for a couple of months and could not dissect her cadaver very much because formaldehyde "strongly irritated" her by causing tearing and a rash. She also had problems with her teeth which caused her to have headaches. She failed neural science and had to make the class up in the summer of 1980. She commenced her second year in August of 1980. The accident occurred on September 5, 1980. She was able to go to class on September 8, 1980. She went to the L.S.U. Family Practice Center (Clinic) for the first time on September 18, 1980, for injuries she received in the accident. At that time, she saw Drs. Francis Nicolle and Sandra Dorsey. Her primary treating physician at the Clinic was Dr. Nicolle. In October of 1980, her back pain caused by the accident forced her to miss three days of class and a test. Brousseau testified her injuries from the accident impaired her ability to study and affected her concentration. She continued going to the Clinic in 1981 and also had physical therapy treatments. Ultimately, Brousseau failed pathology, pharmacology and ophthalmology and, thus, failed her second year in medical school. Brousseau testified the accident and its aftereffects caused academic problems and failure. She was required to repeat her second year during the 1981-1982 school term. During this year, she worked part-time as a medical technician at the Tulane Medical Center. Brousseau again failed pharmacology and was dismissed from the medical school. She returned to L.S.U. and continued work on her masters degree in genetics.

Dr. Caroline Battles testified at the trial she started medical school with Brousseau. In the fall of 1980, Brousseau told her about the accident. At a later date in either September or October, Brousseau called Battles and requested a ride to the Clinic. Battles went to Brousseau's room and observed Brousseau was "in a lot of pain", had difficulty standing up straight and had difficulty walking. Battles had to help Brousseau to the car and into the Clinic. At the Clinic, Brousseau received "a dose pack of steroids." When questioned about the causal relationship between the accident and Brousseau's academic performance in her second year, Battles gave the following testimony:

*450 Q. All right. Are you aware that her professors have indicated that they can not say one way or the other whether or not this accident had any effect on her course work in the courses that she had trouble with? Are you aware of that?
A. Well, I can see what—I'm not aware of that, but I can see what they're saying. I also have to say that it's possible.

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Bluebook (online)
479 So. 2d 446, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brousseau-v-tucker-lactapp-1985.