Donaldson v. Hudson Insurance Co.

116 So. 3d 46, 2012 La.App. 4 Cir. 1013, 2013 WL 1460165, 2013 La. App. LEXIS 737
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 2012-CA-1013
StatusPublished
Cited by7 cases

This text of 116 So. 3d 46 (Donaldson v. Hudson Insurance Co.) 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
Donaldson v. Hudson Insurance Co., 116 So. 3d 46, 2012 La.App. 4 Cir. 1013, 2013 WL 1460165, 2013 La. App. LEXIS 737 (La. Ct. App. 2013).

Opinions

ROLAND L. BELSOME, Judge.

| ] This appeal arises from a jury verdict in favor of the plaintiff, who was injured in a motor vehicle accident. The defendants claim that the trial court erred in excluding their expert witnesses’ testimony and, further, challenge the damages award as excessive. Finding no error in the trial court’s exclusion, we amend the award of past medical expenses and affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Alfred Donaldson, Sr., and his son were injured in an automobile accident on August 10, 2009, when a freightliner truck driven by Loyd Dollins made an illegal right turn from the left lane and struck the plaintiffs vehicle, which was traveling in the right lane. On July 28, 2010, the plaintiff filed a personal injury lawsuit.1 Mr. Dollins, his employer and owner of the truck, Tango Motor Transit, LLC, and Hudson Insurance Company were named as defendants in the suit.

As the suit and discovery progressed, the plaintiff filed a motion for a Daubert2 hearing to challenge the testimony of accident-reconstructionist Jeremy Hoffpauir and orthopedic surgeon Dr. J. Monroe La-borde. After a hearing on the ^motion, the trial court excluded the testimony of both of the defendants’ experts. The defendants sought review of the trial court’s ruling; however, this court declined to exercise supervisory jurisdiction over the matter. After trial on the merits, a judgment was rendered in favor of the plaintiff in the amount of $200,000 plus judicial interest from the date of judicial demand and costs.

DISCUSSION

On appeal, the defendants claim the trial court erred by excluding their experts’ testimony.

[49]*49The Louisiana Code of Evidence allows a witness to qualify as an expert witness by knowledge, skill, experience, training or education. La. C.E. art. 702. The admissibility of expert testimony turns upon whether the trier of fact will be assisted in understanding the evidence or determining a fact in issue. Comment (a) to La. C.E. art. 702.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court established the standards for determining the admissibility of expert testimony. Daubert set forth some non-exclusive factors for courts, as the “gatekeepers,” to consider in making a determination as to whether an expert’s testimony was relevant and reliable. Those factors include but are not limited to: (1) the testability of the technique or scientific theory; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the technique had gained “general acceptance.” Daubert at 593-594, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469.

In Cheairs v. State ex rel. Dept. of Transp. And Dev., 03-680, pp. 1-2 (La.12/3/03), 861 So.2d 536, 538, the Louisiana Supreme Court recognized that |sDaubert addressed only the issue of the reliability of an expert’s methodology and not whether an expert possessed the proper qualifications to testify. The Court, therefore, adopted the three-part inquiry expressed in City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548 (11th Cir.1998), concluding it “provides more comprehensive guidance to district courts determining the admissibility of expert testimony.” Id., 03-680 at 10, 861 So.2d at 543. Thus, the admission of expert testimony is proper only if all three of the following guidelines are met: (1) the expert is qualified to testify competently regarding the matters he intends to address, (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert, and (3) the testimony assists the trier of fact through the application of scientific, technical or specialized expertise, to understand the evidence or to determine a fact in issue. Id., 03-680 at 9, 861 So.2d at 542 (citing Harcros Chemicals, 158 F.3d at 562).

The defendants assert that the trial court excluded their expert witnesses solely on the basis that the experts were not physically present to testify at the Daubert hearing. That is not supported by the record.

Although the transcript from the Dau-bert hearing reflects that there was an extensive discussion about the absence of the defense’s two expert witnesses, Mr. Hoffpauir and Dr. Laborde, the record clearly indicates that the trial court proceeded with the hearing, using the submitted depositions and arguments of counsel. Specifically, the trial court stated:

Why don’t we do this, [sic] Why don’t we ... proceed on argument, based upon the depositions and your pleadings filed ... And if the burden of proof has not been met, then I will rule accordingly.

14At that point, the plaintiff objected arguing that there was a requirement that the party offering or proffering expert testimony produce their witnesses in open court for examination. He then continued with an argument on the merits.

In his argument, which was substantiated by the depositions admitted at the hearing, the plaintiff noted that, Mr. Hoffpauir did not set forth the methodology he used or testify concerning whether or not his results were peer reviewed or predictable. The court interjected that he also admitted [50]*50in his deposition that he never performed any mathematical calculations, examined the vehicles, or communicated with the parties.

The plaintiff then explained that Mr. Hoffpauir had never been allowed to testify about “sideswipe” cases, which was the type of collision in this accident. He did not have an opinion as to what “G forces” were sustained or whether injury was possible in this accident. He made no measurements of crush damage, and he did not perform any mathematical calculations relating to the accident. The plaintiff concluded by arguing that Mr. Hoffpauir’s opinion should be excluded for his failure to measure crush damage, and to perform the expected calculations in accordance with the well-accepted methodologies of accident reconstruction.

Next, the plaintiff addressed Dr. La-borde’s opinion. The plaintiff explained that in his deposition, Dr. Laborde acknowledged that his opinion regarding the plaintiff was formed on the strength of Mr. Hoffpauir’s report together with visibly poor photographs, which he reviewed to determine the impact was slight and there should have been no injury. Dr. Laborde agreed that Mr. Hoffpauir was supposed to perform calculations to determine |¡“Delta-V.” He further conceded that injuries to a person’s spine vary depending on the condition of the spine; and since he never physically examined the plaintiff, -he could not determine the condition of the spine at the time of the accident, or thereafter.

Finally, the plaintiff mentioned that Dr. Laborde had been excluded by more than five judges on grounds of being bias. He then concluded his argument after urging the court to exclude both experts in the absence of proof that the methodology used by Mr. Hoffpauir, which Dr.

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116 So. 3d 46, 2012 La.App. 4 Cir. 1013, 2013 WL 1460165, 2013 La. App. LEXIS 737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/donaldson-v-hudson-insurance-co-lactapp-2013.