Davis v. Martel

790 So. 2d 767, 2001 WL 817639
CourtLouisiana Court of Appeal
DecidedJuly 18, 2001
Docket00-1727
StatusPublished
Cited by6 cases

This text of 790 So. 2d 767 (Davis v. Martel) 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
Davis v. Martel, 790 So. 2d 767, 2001 WL 817639 (La. Ct. App. 2001).

Opinion

790 So.2d 767 (2001)

Dana M. DAVIS
v.
Majorie M. MARTEL and Allstate Insurance Company.

No. 00-1727.

Court of Appeal of Louisiana, Third Circuit.

July 18, 2001.

*768 Archie P. Joseph, Breaux Bridge, La., Counsel for Appellant: Dana Davis.

A.G. Alexander, III, Lafayette, La., Counsel for Appellee: Marjorie M. Martel & Allstate Insurance Company.

Court composed of ULYSSES G. THIBODEAUX, SYLVIA R. COOKS, JOHN D. SAUNDERS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.

COOKS, Judge.

Dana Davis brought this action against Marjorie Martel and her insurer Allstate Insurance Company (Allstate) for damages arising out of an automobile accident which occurred on August 28, 1997. The trial court entered judgment in favor of Martel and Allstate, finding no casual connection existed between the alleged injuries suffered by Davis and the accident. Davis appeals the judgment and argues the trial court erred in concluding the accident could not have caused her injuries and by allowing Victor Summers, III and Dr. Salvadore J. Cuccione, Jr. to testify as experts. For the reasons provided, we reverse the trial court's judgment and award Ms. Davis damages for her injuries in the amount of $20,000 and past medical expenses in the amount of $3,510.53.

FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 1997 Marjorie Martel collided with the left side of Dana Davis' vehicle while attempting to change lanes on Congress Street in Lafayette, Louisiana. The collision shattered Davis' driver's-side mirror and produced dents and scratches on the side of her vehicle. Davis estimated she was traveling 35 to 40 miles per hour at the time of the collision. After impact, Davis' vehicle came to an immediate stop. Davis testified her head struck the steering wheel as a result of the collision.

On the day following the accident, Davis sought medical treatment at Gary Memorial Hospital complaining of headaches and stiffness in her neck. The emergency room physician reported a positive finding for tenderness in the cervical area, and diagnosed Davis with an acute cervical strain. He prescribed Flexeril and Ibuprofen and advised her to follow up with her family physician if her complaints persisted.

Davis sought treatment from Dr. Raul Reyes, a general practitioner, on September 17, 1997. Dr. Reyes diagnosed her with cervical, lumbar and thoracic spine sprains, and cephalaglgia (headaches). Dr. Reyes advised Davis to obtain physical therapy and provided her a manual for her to conduct a home exercise program. Davis followed both of these recommendations.

By January 14, 1998, four months after the accident, Dr. Reyes continued to treat *769 Davis for neck and back problems, which persisted in causing her discomfort. Dr. Reyes reported she experienced temporal headaches at least twice a day which were often severe. Dr. Reyes admitted he did not know the cause of Davis' headaches at the time, so he recommended she consult a neurologist. On February 2, 1998, Davis again advised Dr. Reyes she was having bad headaches and problems with her jaw. Dr. Reyes assumed a connection between Davis' jaw pain and headaches and referred Davis to Dr. James Pearce, an oral surgeon, who first saw Davis on March 24, 1998. Shortly thereafter, Dr. Reyes released Davis from his care in treating her neck and back which had improved. Dr. Pearce continued to treat her headaches and jaw problems. At the initial consultation, Dr. Pearce recorded Davis' complaints of left side auricular and preauricular pain which radiated to her neck and face, and appeared to be stemming from temporal mandibular joint (TMJ). Based on objective findings, Dr. Pearce diagnosed that Davis was suffering from TMJ related problems[1] and recommended splint therapy for a period of six (6) to (9) months. Davis wore splints on a daily basis for over a year. On her discharge date of August 25, 1999, she advised Dr. Pearce she was wearing her splints only at night. She continued to complain of headaches occurring once a week, but without facial pain or jaw pain.

Allstate requested an independent medical examination of Ms. Davis which was conducted by Dr. Edward Neupert on February 10, 1999. Dr. Neupert's initial report indicated the TMJ related problems experienced by Davis could have been initiated by the accident. However, Allstate provided Dr. Neupert with an opinion written by Victor Summers and Dr. Salvadore J. Guccione Jr., employees of Quick & Associates, which suggested the Biodynamic forces which resulted from the accident could not have caused Davis injury. Based on this report alone, Dr. Neupert issued an amended report then concluding Davis' TMJ related problems could not have resulted from the accident. At trial, the court admitted the expert opinion provided by Allstate and rendered a judgment in accordance with its conclusion that the accident could not have caused Davis injury. Davis appeals the trial court's judgment and argues the following assignments of error:

1. The trial court erred by allowing the testimony of Victor Summers, III and Dr. Salvadore J. Guccione, Jr. as experts when they failed to meet the standards as outlined in Louisiana Code of Evidence art.702, State v. Foret, and Daubert v. Merrell Dow Pharmaceuticals, Inc.
2. The trial court erred by concluding the accident resulted in a minor impact which could `not cause any injury to the plaintiff.'

LAW AND DISCUSSION

Expert Testimony

We review the trial court's decision to admit expert testimony pursuant to La. C.E. art. 702 and note, "[a] trial judge has *770 wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous." Mistich v. Volkswagen of Germany, Inc., 95-0939 p. 9, (La.1/29/96); 666 So.2d 1073, 1079.

Louisiana Code of Evidence article 702 states the general rule for the admissibility of expert testimony in Louisiana: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Louisiana adopted the United States Supreme Court's interpretation of Federal Rule of Evidence 702, which mirrors Louisiana Code of Evidence Article 702 in State v. Foret, 628 So.2d 1116 (La. 1993). See White v. State Farm Mutual Automobile Ins. Co., 95-551 (La.App. 3 Cir. 7/17/96); 680 So.2d 1; See also Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the Supreme Court stated, "in order to qualify as `scientific knowledge,' an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation—i.e., `good grounds' based on what is known. In short, the requirement that an expert's testimony pertain to `scientific knowledge' establishes a standard of evidentiary reliability." 509 U.S. at 590, 113 S.Ct. at 2795. The standards imposed by Daubert require the trial court to perform a "gatekeeping" function by deciding whether the expert evidence or testimony is both reliable and relevant.

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Cite This Page — Counsel Stack

Bluebook (online)
790 So. 2d 767, 2001 WL 817639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-martel-lactapp-2001.