Duncan v. Bartholomew

88 So. 3d 698, 2011 La.App. 4 Cir. 0855, 2012 WL 862514, 2012 La. App. LEXIS 352
CourtLouisiana Court of Appeal
DecidedMarch 14, 2012
DocketNo. 2011-CA-0855
StatusPublished
Cited by18 cases

This text of 88 So. 3d 698 (Duncan v. Bartholomew) 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
Duncan v. Bartholomew, 88 So. 3d 698, 2011 La.App. 4 Cir. 0855, 2012 WL 862514, 2012 La. App. LEXIS 352 (La. Ct. App. 2012).

Opinion

PAUL A. BONIN, Judge.

| T Tiffany Duncan, who was injured in a rear-end car accident, complains on appeal that, because she failed to identify one of her treating physicians as a witness on the required pre-trial disclosure, the trial judge erred in restricting her from calling the physician as a witness, from introducing his certified medical records, and from testifying about her treatment by the physician.

[703]*703State Farm Mutual Automobile Insurance Company, the insurer of Naidra Colon, and Mary Bartholomew and her insurer, Government Employees Insurance Company, answered Mrs. Duncan’s appeal. They assign as error the trial judge’s denial of their motions for directed verdicts, the trial judge’s allowing the introduction of medical bills during a re-direct examination of one of Mrs. Duncan’s doctors, the jury’s assessment of mental anguish damages in the amount of $5,000, and the jury’s assessment of special damages for lost wages and future medical expenses. State Farm also complains that the trial judge allowed Mrs. Duncan to introduce the deposition of Kim Sang as substantive evidence at the trial and seeks dismissal of Mrs. Duncan’s appeal on procedural grounds.

Mrs. Duncan previously sought our supervisory review in connection with the trial judge’s rulings preventing the testimony of the unlisted treating physician li>and the introduction of his medical records. Because we apply the law-of-the-case principle to those rulings which we previously considered, and because Mrs. Duncan has not shown palpable error in those rulings, we adhere to our prior rulings and reject these complaints. With respect to the restriction on Mrs. Duncan’s own testimony about her medical treatment, we reviewed the ruling under an abuse-of-discretion standard. But, having considered Mrs. Duncan’s proffer, we find that the restriction of her testimony on this point does not affect the amount of general damages awarded to her by the jury.

We review de novo the defendants’ contention that the trial judge erroneously denied their motion for directed verdicts and conclude that the trial judge correctly denied their motions. We review for an abuse of discretion the trial judge’s allowing the introduction of medical bills during a re-direct examination of Mrs. Duncan’s doctor and conclude that the trial judge did not abuse her discretion. We review for abuse of discretion the jury’s assessment of mental anguish damages in the amount of $5,000, and for manifest error its assessment of special damages for lost wages and future medical expenses. We conclude that the jury did not abuse its discretion in its assessment of general damages for mental anguish and that its awards for the items of special damage are not clearly wrong and are reasonable.

We have also reviewed Mrs. Duncan’s request for an appeal and the order signed by the trial court. We find that Mrs. Duncan perfected a timely devolutive appeal and deny State Farm’s request to dismiss her appeal. We have also reviewed the trial judge’s ruling admitting Mr. Sang’s deposition for abuse of discretion and find no abuse.

^Because we find no reversible error, we affirm the judgment of the district court. In the Parts which follow we explain in detail the reasons for each of our holdings.

I

Before addressing each of the parties’ assignments of error, we provide some background facts and procedural developments in this case.

On the morning of April 10, 2008, Mrs. Duncan, who was a school bus driver at the time, was driving her personal vehicle on Veterans Boulevard. The three vehicles following her were driven by Ms. Colon immediately behind her, followed by Mr. Sang, and then Ms. Bartholomew. There is no question that Mrs. Duncan’s vehicle was rear-ended at least once by Ms. Colon. And there is no question that Ms. Bartholomew’s vehicle struck Mr. Sang’s from the rear and that Mr. Sang’s [704]*704struck Ms. Colon’s from the rear. The jury found that all three of the following drivers were at fault in causing Mrs. Duncan’s injuries and damages.

Prior to trial, Mrs. Duncan settled her claim with Mr. Sang and his insurer and dismissed them from the lawsuit. Mrs. Duncan also settled her claim against her underinsured motorist carrier. Thus, at the time of trial Mr. Sang was no longer a party, but he had been deposed. Ms. Bartholomew and GEICO requested the issuance of a subpoena for Mr. Sang’s attendance at trial, but the sheriff was unable to effect service "on him at either of his two last known addresses.

Also, Mrs. Duncan had been unsuccessful in effecting service of citation and petition on Ms. Colon. The trial proceeded without issue having been joined with Ms. Colon, but her insurer, State Farm, had been cited and served as a party defendant under the direct action statute.

hSeveral months before the trial date, the trial judge had issued pre-trial orders which required disclosure of witnesses by a date certain. Mrs. Duncan missed the deadline date but eventually filed her list of witnesses. Her list did not identify Dr. Patrick Waring, one of her treating physicians.

II

In this Part, we explain why Mrs. Duncan’s pleading giving notice of her desire to appeal the judgment and the order which issued are sufficient to perfect her devolutive appeal.

The final judgment appellant appeals was read, rendered, and signed on November 2, 2010. The notice of signing of the judgment was issued on November 4, 2010. Neither party filed a motion for a new trial or a judgment notwithstanding the verdict. Mrs. Duncan filed her motion for an order of appeal1 on December 23, 2010, and the order was signed on January 4, 2011. Because Mrs. Duncan obtained an order of appeal sixty-one days after the notice of signing of judgment, and because sixty-one days is within the delay allowed for a devolutive appeal, the order granting Mrs. Duncan a devolutive appeal was timely. See La. C.C.P. art. 2121.

Ill

In this Part we explain why we conclude that the trial judge did not abuse her discretion in admitting the deposition of Mr. Sang, who was not physically present at trial. The trial judge allowed the use of Mr. Sang’s deposition because she determined that he was “unavailable.”

|s“The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds ... [tjhat the witness is unavailable.” La. C.C.P. art. 1450 A(3)(a). “The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion.” Boutte v. ABC Ins. Companies, 00-0649, p. 8 (La.App. 4 Cir. 2/6/02), 811 So.2d 30, 35.

[705]*705“[A] declarant is unavailable as a witness’ when the declarant cannot or will not appear in court to testify to the substance of his statement made outside of court.” La. C.E. art. 804 A. The broad definition of “unavailable” found in the Code of Evidence is limited, in part, by the fact that “[a] witness who is within the state is subject to subpoena and generally is not unavailable’ for Article 804 purposes.” Maraist, 19 La. Civ. L. Treatise, Evidence And Proof § 10.6 (2011), citing La. C.C.P. art. 1352, which provides, “A witness, whether a party or not, who resides or is employed in this state may be subpoenaed to attend a trial or hearing wherever held in this state.”

Mrs.

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Bluebook (online)
88 So. 3d 698, 2011 La.App. 4 Cir. 0855, 2012 WL 862514, 2012 La. App. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-bartholomew-lactapp-2012.