Judgment rendered Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 55,211-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
COURTNEY JO TULLY Plaintiff-Appellee
versus
ALFREDO GRANILLO, HUDGINS Defendants-Appellants ROOFING COMPANY, AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 2019-1228
Honorable Robert C. Johnson, Judge
DAVENPORT, FILES, AND KELLY, LLP Counsel for Appellants By: Carey B. Underwood
NELSON, ZENTNER, SARTOR, AND SNELLINGS, LLC By: Thomas G. Zentner, Jr.
EDDIE CLARK AND ASSOCIATES, LLC Counsel for Appellee By: Eddie M. Clark
Before PITMAN, STONE, STEPHENS, ROBINSON, and ELLENDER, JJ.
STONE, J., dissents with written reasons. ROBINSON, J.
Plaintiff, Courtney Jo Tully (“Tully”) sued Defendants, Alfredo
Granillo (“Granillo”), Granillo’s employer, Hudgins Roofing Company
(“Hudgins”), and Hudgins’ liability insurer, State Farm Mutual Automobile
Insurance Company (“State Farm”), (collectively, “Defendants”), on April
10, 2019, seeking damages for injuries suffered in an automobile collision
on April 16, 2018, caused by the negligence of Granillo.
The parties entered into a joint stipulation and consent judgment on
June 4, 2020, in which they stipulated that Granillo was an employee of
Hudgins working in the course and scope of employment, Hudgins was
insured by State Farm, and Defendants were 100% at fault. Prior to trial,
Tully filed a motion for partial summary judgment on the issue of causation
of injury, as well as motions in limine to exclude Tully’s prior accidents and
any evidence concerning force of impact. Judgments granting Tully’s
motion for partial summary judgment on causation and motion in limine
regarding prior accidents were entered on February 26, 2021. A standing
order granting the motion in limine regarding force of impact references and
evidence was entered at the onset of trial, on March 16, 2022.
A jury verdict was rendered in Tully’s favor on March 18, 2022,
awarding past medical expenses of $95,286, future medical expenses of
$1,300,000, and general damages of $1,000,000. A judgment confirming
the verdict was entered on March 23, 2022. All post-trial motions were
denied by the trial court. Defendants filed a motion for suspensive appeal on
June 22, 2022, and an order granting the appeal was signed June 29, 2022. For the following reasons, we REVERSE the trial court’s judgment on
Tully’s motion for partial summary judgment on the issue of causation and
its order granting Tully’s motion in limine to exclude any reference to or
evidence on Defendants’ low impact theory. We VACATE AND
REMAND the trial court’s judgment confirming the jury’s verdict on
damages and grant a new trial.
FACTS AND PROCEDURAL HISTORY
On April 16, 2018, Granillo, while in the course and scope of his
employment for Hudgins, was involved in an automobile accident with
Tully. Tully was driving her 2008 Chevrolet HHR SUV on a Monroe city
street when Granillo backed out his work truck, a 2016 GMC Silverado
truck, from the side of the road into Tully’s lane of travel without warning,
resulting in a collision with impact to the passenger side of Tully’s vehicle.
Defendants stipulated Granillo was 100% at fault. Both vehicles were
drivable after the accident, and no injury was reported at the scene.
The day after the accident, Tully began experiencing pain in her low
and middle back, right hip, and neck. She first contacted her attorney, who
recommended the use of a chiropractor. Tully began chiropractic treatment
with Dr. G.G. Grant two days after the accident. After little progress, Dr.
Grant recommended a cervical MRI, which was taken on August 1, 2018,
and showed a small bulge at the C5-6 vertebrae without stenosis and a small
disc herniation at C6-7. Dr. Grant then referred Tully to Dr. John Ledbetter
at Louisiana Pain Care.
Tully had her initial consultation with Dr. Ledbetter on August 20,
2018, for her neck and back pain. Dr. Ledbetter referred Tully to physical
2 therapy, which she attended at Melanie Massey Physical Therapy from
September 11 through October 13, 2018. Tully returned to Dr. Ledbetter
after physical therapy, still experiencing neck pain.
Medial branch blocks at the right side of C3-6 were performed on
February 13, 2019, and the left side on February 20, 2019. Tully reported a
50% reduction in neck pain following the procedures, but pain increased
shortly after. A cervical epidural steroid injection was performed on June 3,
2019. Tully again reported a reduction in pain of 50-60%, but had continued
stiffness with neck rotation. Bilateral cervical medical branch nerve blocks
were again performed on June 24, 2020. Tully reported significant relief but
some continued pain, stiffness, and limited range of motion. Dr. Ledbetter
then recommended Tully receive bilateral cervical medial branch
rhizotomies (ablations). The right side ablation was performed on August
12, 2020, and the left side on September 16, 2020. The procedure
significantly helped with pain, but it gradually returned. Dr. Ledbetter
performed a second ablation on both sides of the neck in September 2021.
Tully returned to Dr. Ledbetter for the last time on October 27, 2021, stating
she was very pleased with the response she had to the procedures.
Dr. Harold Katz performed an independent medical examination
(“IME”) for Tully on July 20, 2020, for headaches, numbness on her right
side, and decreased range of motion in her neck. Dr. Katz diagnosed pre-
existing cervical spondylosis that was aggravated by the accident, along with
a disc herniation at C6-7 with associated mild right C7 weakness, radicular
symptoms, cervical headaches, and paresthesia in her right upper extremity.
He noted that she was at an increased risk of requiring future neck surgery
3 and recommended that she be evaluated by a spine surgeon. He indicated
she would likely benefit from a home exercise program, over-the-counter
pain relievers as needed, and a muscle relaxer at bedtime, as well as regular
physical therapy.
Dr. Marshall Cain performed an IME for Tully on behalf of
Defendants in March 2021. Tully informed Dr. Cain that she was still doing
well from the ablations and her herniated disc was not causing her any
problems. Dr. Cain agreed that continued ablations were an appropriate pain
relief recommendation, but he would not make any projections as to how
long she may need them, noting the unpredictable nature of Tully’s
condition and that the procedures could provide relief for only a limited
amount of time or as long as several years at a time or indefinitely. Dr.
Cain’s IME of Tully was taken as a result of Defendants’ motion to compel
the IME, which was heard on the same day as the motion for partial
summary judgment. The motion to compel the IME was granted, but the
record was not left open for the IME and depositions of the IME physician
to be introduced as evidence.
Drs. Ledbetter and Katz both testified Tully will more likely than not
need bilateral ablations repeated on average once per year indefinitely
through her life expectancy, as well as pain management follow-up on an
average of twice per year indefinitely through life, and routine physical
therapy on an average of eight visits per year through her life. Dr. Grant
testified that she will need chiropractic care for several years, though Tully
had not had any physical therapy or chiropractic treatments since January
24, 2019, over three years prior to the trial.
4 At the time of the accident, Tully was a single mother to a 13-year-old
son and 8-year-old daughter. She had been working at Super Discount
Liquor for 12 years and was a part-time professional model. Her job at the
store required heavy lifting and other physical activity. There is some
dispute as to whether Tully had been working at the liquor store at the time
of the accident and whether Tully’s employment was terminated because she
was no longer able to perform required tasks or for some other reason. Tully
testified that she could also no longer model since it required standing poses
for long periods of time and she could no longer participate in intensive gym
workouts. She also testified as to her inability to participate in activities
with her children as she had previously.
The parties stipulated that the Defendants were 100% at fault.
However, Tully filed a motion for partial summary judgment on the issue of
causation, as well as a motion in limine to exclude any evidence concerning
force of impact. Tully attached to her motion for partial summary judgment,
an affidavit from Dr. Ledbetter and accompanying medical records from
Louisiana Pain Care, and medical records from Dr. Grant and Shell
Chiropractic Clinic. The trial court granted the motion for partial summary
judgment, holding that the accident caused the injuries to Tully. The court
also granted the motion in limine to exclude photographs of the vehicles and
any testimony concerning force of impact or the minor amount of damage
caused by the collision.
During closing arguments, Defendants objected to Tully’s “unit of
time” reference in their closing argument that broke down the request for
$1,000,000 in general damages for Tully’s remaining life expectancy of 43
5 years to $2.64/hour. The objection was overruled. A jury verdict was
ultimately rendered in favor of Tully on March 18, 2022, awarding past
medical expenses of $95,286, future medical expenses of $1,300,000, and
general damages of $1,000,000. A judgment confirming the verdict was
entered on March 23, 2022. Post-trial motions were filed by both parties but
denied by the trial court. Defendants filed a motion for suspensive appeal on
June 22, 2022, and an order granting the appeal was signed June 29, 2022.
DISCUSSION
Motion for Partial Summary Judgment
Defendants argue that the trial court erred in granting Tully’s motion
for partial summary judgment on the issue of causation because a causation
determination necessarily invokes a credibility assessment of the plaintiff,
which is not appropriate on summary judgment. Defendants note that
Tully’s motion was supported by the affidavit of Dr. Ledbetter, who
concluded that Tully’s injuries were more likely than not related to the
accident “after taking into account the history given by Ms. Courtney Tully.”
They urge that the jury should have been allowed to determine Tully’s
credibility as she testified, as well as the credibility of Granillo and the
police officer, and to examine photographs of the minor damage to the
vehicles involved in the accident.
Tully agrees with Defendants that, in many cases, a causation
determination requires assessing a plaintiff’s credibility, but it is only those
cases in which there is evidence that the plaintiff has provided physicians
with an inaccurate or incomplete history, leading to a possibly different
6 conclusion on medical causation, and there is no evidence of that possibility
in this case.
Appellate courts review summary judgments de novo, using the same
criteria that govern a trial court’s consideration of whether summary
judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-
2181 (La. 2/29/00), 755 So. 2d 226; Murphy v. Savannah, 18-0991 (La.
5/8/19), 282 So. 3d 1034; Schroeder v. Board of Sup’rs of Louisiana State
University, 591 So. 2d 342 (La. 1991; Dumas v. Angus Chemical Co.,
31,969 (La. App. 2 Cir. 8/20/99), 742 So. 2d 655. An appellate court must
reverse the granting of a motion for summary judgment unless it finds that
the movant proved both of the necessary elements for summary judgment:
(1) that no genuine issues of material fact exist, and (2) that movant is
entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3); Magnon
v. Collins, 98-2822 (La. 7/7/99), 739 So. 2d 191. These are the same
questions asked by the trial court in determining whether summary judgment
is appropriate. Id. Although summary judgments are now favored in
Louisiana, a movant must still follow the proper procedure and prove
entitlement to summary judgment before it is granted. La. C.C.P. art.
966(A)(2); Independent Fire, supra. A motion for summary judgment is not
to be substituted for a trial on the merits. Grisby v. Jaasim II, LLC, 54,646
(La. App. 2 Cir. 9/21/22), 349 So. 3d 103, writ denied, 22-01573 (La.
12/20/22), 352 So. 3d 87; S.J. v. Lafayette Parish School Board, 06-2862
(La. 6/29/07), 959 So. 2d 884; Faul v. Bank of Sunset & Trust Co., 93-1080
(La. App. 3 Cir. 4/6/94), 635 So. 2d 573, writ denied, 94-1627 (La. 9/30/94),
642 So. 2d 879. This Court has held that summary judgment is appropriate
7 only when all the relevant facts are marshalled before the court, the
marshalled facts are undisputed, and the only issue is the ultimate conclusion
to be drawn from those facts. Robertson v. State ex rel. Dept. of Planning &
Control, 32,309 (La. App. 2 Cir. 12/10/99), 747 So. 2d 1276, writ denied,
00-0041 (La. 2/25/00), 755 So. 2d 882. Once an unresolved genuine factual
issue is detected, summary judgment cannot be granted. Layne v. City of
Mandeville, 633 So. 2d 608 (La. App. 1 Cir. 1993), writ denied, 94-0268
(La. 3/25/94), 635 So. 2d 234.
In a motion for summary judgment, the burden of proof rests with the
movant. La. C.C.P. art. 966(D)(1). The burden shifts to the nonmoving
party only after the movant has properly supported the motion and carried
his initial burden of proof. Tanner v. Reynolds Metals Co., 98-1456 (La.
App. 1 Cir. 1999), 739 So. 2d 893. The trial court may not properly place
the initial burden of proving that the moving party is not entitled to a motion
for summary judgment on the party opposing the motion. Transworld
Drilling Co. v. Texas General Resources, Inc., 604 So. 2d 586 (La. App. 4
Cir. 1992), writ denied, 608 So. 2d 174 (La. 1992). Thus, if the moving
party fails to carry the burden of proving no genuine issues of material fact
exist, the opposing party may rest on the mere allegations or denials
contained in his or her pleadings. Downtown Parking Service, Inc. v.
Hyman, 93-1803 (La. App. 4 Cir. 1994), 635 So. 2d 282, writ denied, 94-
1519 (La. 9/23/94), 642 So. 2d 1298. If the evidence submitted by the party
moving for summary judgment is insufficient from either an evidentiary or
substantive legal standpoint to prove that no genuine issues of material fact
exist and that he is entitled to judgment as a matter of law, the motion for
8 summary judgment must be denied; the burden never shifts to the opposing
party. Hopkins v. Sovereign Fire & Cas. Ins. Co., 626 So. 2d 880 (La. App.
3 Cir. 1993), writ denied, 634 So. 2d 390 (La. 1994). In fact, in Crockerham
v. Louisiana Medical Mutual Ins. Co., 17-1590 (La. App. 1 Cir. 6/21/18),
255 So. 3d 604, the First Circuit found that the failure to file an opposition
to a motion for summary judgment did not automatically require the granting
of the motion because the movant’s supporting documents were insufficient
to resolve all material fact issues; therefore, summary judgment must be
denied in favor of a trial on the merits even though the nonmoving party did
not file an opposition to the motion. The opposing party’s failure to file
evidence opposing the motion for summary judgment does not mean that the
moving party is automatically entitled to summary judgment. Caballero
Planting Co., Inc. v. Hymel, 597 So. 2d 35 (La. App. 1 Cir. 1992), writ
denied, 98-2035 (La. 11/6/98), 728 So. 2d 391.
Here, Tully is the movant on the motion for partial summary judgment
and, as the plaintiff, would normally bear the burden of proving causation at
trial. In a personal injury suit, the plaintiff bears the burden of proving a
causal relationship between the injury sustained and the accident which
caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.
2/20/95), 650 So. 2d 757; Bradshaw v. Brookshire Grocery Co., 38,960 (La.
App. 2 Cir. 10/27/04), 886 So. 2d 623. The test for determining the causal
relationship is whether the plaintiff proved through medical testimony that it
is more probable than not that the subsequent injuries were caused by the
accident. Maranto, supra. To assist with this burden, a plaintiff may be
entitled to a presumption that the injury was caused by the accident, which
9 would then shift the burden of proof to a defendant to prove that there is no
causation.
Under Housley v. Cerise, 579 So. 2d 973 (La. 1991), writ denied, 600
So. 2d 646 (La. 1992), the Louisiana Supreme Court clarified that a personal
injury plaintiff is entitled to a presumption that his disability or injury
resulted from the subject accident if essentially he was in good health before
the accident and symptoms of injury did not commence until following the
accident. Gober v. Walgreen Louisiana Co., 46,730 (La. App. 2 Cir.
11/2/11), 80 So. 3d 9, writ denied, 11-2837 (La. 3/2/12), 84 So. 3d 531;
Bruce v. State Farm Ins. Co., 37,704 (La. App. 2 Cir. 10/29/03), 859 So. 2d
296; Lamb v. Berry, 35,347 (La. App. 2 Cir. 12/2/01), 803 So. 2d 1024. In
order for a plaintiff to benefit from the Housley presumption of causation,
three elements have to be proven by the plaintiff by a preponderance of the
evidence: (1) the plaintiff was in good health prior to the accident (or there
were no symptoms from a pre-existing condition); (2) subsequent to the
accident, the symptoms of the alleged injury appeared and continuously
manifested themselves afterwards; and (3) there is a reasonable possibility of
causation between the accident and the claimed injury (demonstrated by
medical, circumstantial, or common knowledge evidence). Edwards v. LCR-
M Corp., Inc., 41,125 (La. App. 2 Cir. 7/12/06), 936 So. 2d 233; Peters v.
Williams, 40,403 (La. App. 2 Cir. 12/14/05), 917 So. 2d 702; Juneau v.
Strawmyer, 94-0903 (La. App. 4 Cir. 12/15/94), 647 So. 2d 1294; Kelly v.
AME Janitorial Services Co., 09-1167 (La. App. 4 Cir. 3/3/10), 33 So. 3d
358; Gober, supra; Bruce, supra.
10 Tully attached Dr. Ledbetter’s affidavit and medical records from
Louisiana Pain Care, as well as the medical records from Dr. Grant and Shell
Chiropractic Clinic, to her motion for partial summary judgment on the issue
of causation. Defendants waived any objections to admissibility of the
evidence by failing to file an opposing affidavit or otherwise objecting to the
evidence, so the trial court was required to consider the evidence. Unless a
document has been excluded pursuant to an objection, the trial court is
statutorily obligated to consider the contents, regardless of how conclusory
the statements made therein may be. Thompson v. Center for Pediatric and
Adolescent Medicine, L.L.C., 17-1088 (La. App. 1 Cir. 3/15/18), 244 So. 3d
441, writ denied, 18-0583 (La. 6/1/18), 243 So. 3d 1062; Aziz v. Burnell, 21-
187 (La. App. 3 Cir. 11/3/21), 329 So. 3d 963, writ denied, 21-01790 (La.
2/15/22), 332 So. 3d 1177. However, “merely stapling documents” to a
motion for summary judgment does not transform them into competent
summary judgment evidence. Randazzo v. St. Bernard Parish Gov’t, 16-
0902 (La. App. 4 Cir. 5/30/17), 219 So. 3d 1128, writ denied, 17-1209 (La.
10/27/17), 228 So. 3d 1236. The Louisiana Supreme Court in Murphy,
supra, held that affidavits devoid of specific facts and based on conclusory
allegations are not sufficient to defeat summary judgment. An affidavit
must be made on “personal knowledge” and encompass only those facts that
the affiant saw, heard, or perceived with his senses. Roach v. Moffatt,
55,415 (La. App. 2 Cir. 1/10/24), 379 So. 3d 268; Dominio v. Folger Coffee
Co., 05-0357 (La. App. 4 Cir. 2/15/06), 926 So. 2d 16, writ denied, 10-0570
(La. 5/21/10), 36 So. 3d 232.
11 An affidavit from a medical expert is admissible on the hearing of a
motion for summary judgment, despite the fact it is based on hearsay
information rather than the expert’s personal knowledge. Thierry v. State
Through Dept. of Health & Hosp. & Univ. Med. Ctr. of Lafayette, 06-1133
(La. App. 3 Cir. 2/7/07), 948 So. 2d 1200. The use of hearsay history of a
case as told to a physician by a patient is admissible to show the basis of a
physician’s diagnosis and treatment. Boudreaux v. Mid-Continent Cas., 09-
1379 (La. App. 1 Cir. 5/7/10), 2010 WL 1838560; Dardeau v. Ardoin, 97-
144 (La. App. 3 Cir. 11/5/97), 703 So. 2d 695, writ denied, 98-0359 (La.
3/27/98), 716 So. 2d 889. However, a court may not consider ultimate or
conclusive facts and conclusions of law contained in supporting or opposing
affidavits in deciding a motion for summary judgment. Dumas, supra;
Honeycutt v. International Paper Co., 421 So. 2d 1161 (La. App. 2 Cir.
1982).
Although Dr. Ledbetter’s affidavit and the medical records were
ultimately admitted as evidence on Tully’s motion for partial summary
judgment on causation, the trial court must still abide by certain important
principles. First, the trial judge cannot make credibility determinations on a
motion for summary judgment. Sportsman Store of Lake Charles, Inc. v.
Sonitrol Security Systems of Calcasieu, Inc., 99-0201 (La. 10/19/99), 748
So. 2d 417. Second, any inferences drawn by the trial court from undisputed
facts should be in favor of the party opposing the motion. Independent Fire,
supra. Most importantly, because summary judgments deprive the litigants
of the opportunity to present their evidence to a jury, they should be granted
12 only when the evidence presented at the motion for summary judgment
establishes that there is no genuine issue of material fact in dispute. Id.
Dr. Ledbetter’s affidavit stated that he is treating Tully for neck pain
“as a result of the injuries sustained in the April 16, 2018, collision” and that
he took into account “history given by [Tully].” The affidavit and records
indicate that, subsequent to the accident, Tully’s symptoms appeared and
continuously manifested themselves afterwards. They also support a
“reasonable possibility” of causation because Dr. Ledbetter attested to
treating Tully for injuries he believed were caused by the accident.
However, Dr. Ledbetter does not indicate in his affidavit that Tully had no
symptoms prior to the accident, other than references to what Tully
communicated to him. Tully was not a patient of Dr. Ledbetter until after
the accident, and there was nothing in the affidavit or accompanying records
to show that Dr. Ledbetter had any connection to Tully whatsoever prior to
the accident. Dr. Ledbetter could only have obtained knowledge regarding
Tully’s condition pre-accident from Tully providing that information. Tully
did not prove the first element of the Housley presumption on her motion for
partial summary judgment on the issue of causation – that she was in good
health prior to the accident (or had no symptoms from a pre-existing
condition); therefore, she was not entitled to any presumption of causation at
that procedural juncture.
Because Tully is not entitled to the Housley presumption, as the
plaintiff movant on the motion for partial summary judgment on the issue of
causation with the burden of proof at trial, she must prove that no genuine
issue of material fact exists as to the accident being the cause of the injury.
13 Tully must carry the initial burden of proof before the burden shifts to the
nonmovant Defendants to submit evidence that there is a genuine issue of
material fact. Tully’s evidence did not prove that she was in good health
pre-accident, which, in and of itself, creates a genuine issue of material fact
as to whether the accident caused her injury. She did not provide affidavits
or records from any other physician or healthcare facility, her own affidavit,
or any other circumstantial or common knowledge evidence. The evidence
not only failed to prove Tully was in good health prior to the accident, but it
was insufficient to show that no genuine issue of material fact existed as to
whether the accident caused the injury because not all relevant facts were
marshalled before the court.
A jury may accept or reject a medical expert’s opinion after weighing
and evaluating medical testimony. Merrells v. State Farm Mut. Auto. Ins.
Co., 33,404 (La. App. 2 Cir. 6/21/00), 764 So. 2d 1182; McInnis v. Bonton,
17-0088 (La. App. 1 Cir. 9/21/17), 232 So. 3d 22. The jury is not bound to
accept a plaintiff’s perception, or any other witness’ perception, of the nature
and extent of his injuries. Stevenson v. Serth, 14-846 (La. App. 5 Cir.
3/25/15), 169 So. 3d 612; McInnis, supra. The jury can choose to reject all
of the testimony of any witness or may believe and accept any part of a
witness’ testimony and reject any other part. Stevenson, supra; McInnis,
supra; Jones v. Bravata, 18-0837 (La. App. 1 Cir. 7/24/19), 280 So. 3d 226,
writ denied, 19-01850 (La. 2/26/20), 294 So. 3d 477. Further, force of
impact is a valid criterion in determining causation and extent of injuries.
Merrells, supra. It is proper for a trier of fact to consider the minimal nature
of a motor vehicle accident to determine whether injuries have been
14 suffered, including allowing photographs of vehicles to be introduced so that
a jury can fully consider the facts of the case is it relates to credibility and
causation. Boudreaux, supra. In Brown v. Trask, 08-0006 (La. App. 4 Cir.
10/15/08), 998 So. 2d 131, writ denied, 08-2707 (La. 1/30/09), 999 So. 2d
757, the trial court allowed a jury to view photographs that showed no
damage to the front of a defendant’s car, and the appellate court concluded
that the jury could have reasonably found that such a minor accident could
not have caused the debilitating injuries alleged by the plaintiff. In Rachal v.
Gilchrist, 08-342 (La. App. 3 Cir. 10/1/08), 995 So. 2d 1226, writ denied,
08-2612 (La. 1/9/09), 998 So. 2d 725, the trial court allowed a jury to be
presented photographs of minor damage to a vehicle’s mirror and the jury
found insufficient evidence of the alleged injuries.
The trial court noted that it was unable to find a material issue of fact
on causation because Defendants had not filed any exhibits to rebut Tully’s
motion for partial summary judgment. Because Tully never carried her
initial burden and failed to show that there was no genuine issue of material
fact as to causation, the burden of proof never shifted to Defendants.
Defendants’ failure to present any evidence was inconsequential.
Therefore, the trial court erred in granting Tully’s motion for partial
summary judgment on this basis.
A trial court should not grant a motion for summary judgment if doing
so requires it either to weigh evidence or to make credibility evaluations.
Rivault v. America Homeland, LLC, 21-00708 (La. 10/12/21), 325 So. 3d
1051; Faul, supra. Credibility determinations and the weighing of
conflicting factual evidence has no place in deciding a motion for summary
15 judgment. Brooks v. Minnieweather, 44,624 (La. App. 2 Cir. 8/19/09), 16
So. 3d 1244; Gladney v. Milam, 39,982 (La. App. 2 Cir. 9/21/05), 911 So.
2d 366. In ruling on a motion for summary judgment, the judge’s role is not
to evaluate the weight of the evidence or to determine the truth of the matter
but, instead, to determine whether there is a genuine issue of triable fact.
Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764.
During the hearing on the motion for partial summary judgment,
Defendants urged that the record on the motion should be kept open to allow
for the future testimony of Granillo, other physicians, the investigating
officer, and lay witnesses. In response, the trial judge stated:
[Future depositions from Granillo] would do very little to answer the medical question of whether or not the accident itself caused the injury. And so, taking his deposition is not going to aid the Court in determining the question of the causal connection between the accident and the alleged resulting injuries of the neck and back pain that were allegedly suffered by Ms. Tully. It appears to me that can only be determined by medical experts and the defendant driver is not a medical expert, so his testimony regarding the facts of the case and how the accident happened would shed no light in the Court’s view on the question that is before the Court today in this motion for partial summary judgment on the question of a causal connection between the accident and the medical – the resulting medical injuries of neck and back pain to Ms. Tully.
There was also discussion regarding the specific context in which Dr. Cain
would provide his testimony, whether regarding causation or damage
amounts. The trial court found that Defendants did not engage Dr. Cain for
the purpose of making any causal connection but only for future medicals.
The law does provide that causation in a personal injury action shall be
proven through medical testimony; however, the trial court mistakenly
interpreted this concept to mean that medical testimony is the only evidence
required or permissible to prove causation. Other evidence can and should
16 be presented to a jury to make the causal connection. The trial court’s
granting of Tully’s motion for partial summary judgment on this basis was
also error.
In addition, the trial court improperly weighed evidence and made
credibility determinations. In particular, it made the determination that
Granillo’s testimony “would do very little to answer the medical question of
whether or not the accident itself caused the injury,” essentially weighing
evidence that had yet to be presented. It also made an improper credibility
determination when it relied on the hearsay evidence in the medical records
regarding Tully’s condition and symptoms rather than allowing Tully to
testify and having the jury make that determination. Therefore, the trial
court erred in granting Tully’s motion for partial summary judgment on
these bases as well.
The trial court erred in granting Tully’s motion for partial summary
judgment on the issue of causation due to its misapplication of the proper
burden of proof, a mistake in law regarding medical testimony, and the
improper weighing of evidence and credibility determinations. As a result,
this Court reverses the trial court’s granting of the motion for partial
summary judgment as well as its judgment at trial regarding damages, and
finds that a new trial is warranted consistent with this opinion.
Motion in Limine
Tully’s motion in limine to exclude any evidence concerning force of
impact was filed following the granting of her motion for partial summary
judgment on the issue of causation, and it is clear that the motion in limine
was granted as a direct result of the granting of the motion for partial
17 summary judgment. Had partial summary judgment been denied,
Defendants should have had the opportunity to introduce evidence of the
low-impact crash in support of their argument that the accident was not the
cause of Tully’s injuries or the full extent thereof, or at minimum, to present
to the jury for consideration when awarding proper damage amounts.
Therefore, as a result of this Court’s reversal of the motion for partial
summary judgment, the motion in limine regarding force of impact evidence
is also reversed.
Excessive Damages
Defendants argue that Tully’s awards of $1,300,000 for future
medical expenses and $1,000,000 for general damages are excessive because
Tully’s future medical treatments are speculative and general damages in
prior jurisprudence for plaintiffs with treatment for life are well below
Tully’s awarded amount. They also argue that the trial court erred in
overruling its objections to Tully’s “unit of time” reference in her closing
argument that broke down the request for $1,000,000 in general damages for
Tully’s remaining life expectancy of 43 years to $2.64/hour, which is
improper. Tully claims the awards are well supported by evidence and that
the record lacked evidence to support lower amounts, and that the “unit of
time” argument was permissible.
This Court declines to discuss the particulars of Tully’s damage
amounts because a new trial is warranted as a result of this Court’s reversals
of the trial court’s judgment on Tully’s motion for partial summary
judgment on the issue of causation and ruling on Tully’s emergency motion
in limine to exclude any reference to “low impact wreck,” and resulting
18 reversal of the trial court’s judgment at trial. However, this Court will note
the Louisiana Supreme Court’s recently rendered opinion in Pete v. Boland,
23-00170 (La. 10/20/23), in which it stated that, “We now hold that an
appellate court must consider relevant prior general damage awards as
guidance in determining whether a trier of fact’s award is an abuse of
discretion.”
CONCLUSION
For the foregoing reasons, we REVERSE the trial court’s judgment on
Tully’s motion for partial summary judgment on the issue of causation and
its ruling and order granting Tully’s motion in limine to exclude any
reference to or evidence on Defendants’ low impact theory. As a result, we
VACATE AND REMAND the trial court’s judgment confirming the jury’s
verdict on damages. All costs of this proceeding are to be split 50% to
Plaintiff, 50% to Defendants.
REVERSED; VACATED AND REMANDED.
19 STONE, J., dissenting with written reasons.
I respectfully dissent from the majority opinion. This court should
affirm the trial court’s judgment granting plaintiff’s partial motion for
summary judgment.
This case involves a defense strategy that went awry and the defense’s
failure to correct it. The defense’s argument is premised on the fact that Dr.
Ledbetter’s affidavit states expressly that he relied on the medical and case
history that the plaintiff provided him in forming the basis of his opinion on
causation of injury. The defense claims that, in finding this affidavit
constitutes prima facie proof of causation of injury, the trial court
impermissibly made a credibility determination on summary judgment – i.e.,
determined the plaintiff’s history given to Dr. Ledbetter to be truthful. This
argument misunderstands summary judgment procedure. Aside from
exceptions not relevant here, summary judgment affiants and witnesses are
deemed credible. That presumption of credibility remains in force unless
and until contradictory summary judgment evidence is introduced; in that
case, grounds for the existence of a genuine issue of material fact has been
established. Thus, it is incumbent on the defendants to introduce summary
judgment evidence contradicting the plaintiff’s narrative on which Dr.
Ledbetter relied; otherwise, plaintiff’s narrative is deemed to be truthful for
purposes of summary judgment.
The defense did not introduce any summary judgment evidence or
object to the admission of any of the evidence that the plaintiff filed in
support of the motion for summary judgment (“MSJ”). Also, the defense
failed to show how plaintiff’s affidavit and supporting evidence was
1 insufficient. Therefore, the court was statutorily obligated to consider all of
that evidence, which reflected the opinion of a medical expert that the
accident caused Tully’s symptoms.
La. C.C.P. art. 967(A) states:
A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. The supporting and opposing affidavits of experts may set forth such experts’ opinions on the facts as would be admissible in evidence under Louisiana Code of Evidence Article 702, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
The trial court did not err in granting the partial motion for summary
judgment and did not misinterpret the law as the majority suggests.
The MSJ was essentially unopposed. La. C.E. art. 703 allows expert
witnesses to rely on hearsay or other inadmissible evidence, including in a
summary judgment affidavit. Barber v. Louisiana Mun. Risk Mgmt. Agency
Grp. Self-Insured Fund, 17-1005 (La. App. 3 Cir. 4/18/18), 244 So. 3d 56,
61. In particular, La. C.E. art 703 states:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (Emphasis added).
Thus, in the matter sub judice, Dr. Ledbetter’s reliance on Tully’s
statement that she did not have symptoms prior to the accident was totally
2 compliant with the standards set forth in La. C.C.P. art. 967(A), and his
opinion that the accident caused Tully’s symptoms is prima facie evidence
of medical causation. That reality shifts the burden to the defense, and
renders applicable La. C.C.P. art. 967(B):
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
As previously stated, the defense failed to oppose the MSJ. If there was
outstanding discovery the defense needed to oppose the MSJ, the defense
was required under La. C.C.P. art. 967(B) to so state in an affidavit
compliant with La. C.C.P. art. 967(A) and filed with or referenced in the
opposition memorandum. The onus is not on the trial court, and protestations
of inadequate opportunity for discovery not made in that form are not legally
cognizable and are utterly devoid of effect. The trial court did not err in
granting the MSJ.