NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-1035
EARL MCCARTHY, SR.
VERSUS
CITY OF OPELOUSAS, ET AL.
**********
APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 13-C-2626-B HONORABLE GERARD CASWELL, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.
AFFIRMED.
Gloria A. Angus Angus Law Firm, LLC P. O. Box 2337 Opelousas, LA 70571 Telephone: (337) 948-8800 COUNSEL FOR: Plaintiff/Appellant - Earl McCarthy, Sr. Travis J. Broussard Durio, McGoffin, Stagg & Ackermann P. O. Box 51308 Lafayette, LA 70505-1308 Telephone: (337) 233-0300 COUNSEL FOR: Defendant/Appellee - City of Opelousas THIBODEAUX, Chief Judge.
Earl McCarthy, Sr. brought this tort action against the City of
Opelousas (hereafter “the City”) after a tree located at North City Park split and
fell on his truck and, allegedly, on his person. The trial court found that the
defective condition of the tree caused damage to the truck, but that Mr. McCarthy
failed to meet his burden of proof that he sustained physical injury. Mr. McCarthy
was awarded $5,073.66 in property damage. Mr. McCarthy was not awarded
personal injury damages. Additionally, the trial court awarded $2,500 in expert
witness fees. Mr. McCarthy now appeals. We affirm.
I.
ISSUES
This court must determine:
(1) whether the trial court erred in determining that the plaintiff was not credible, and that another witness was credible when no objective evidence supported the testimony;
(2) whether the trial court erred in its denial of specific and general damages; and,
(3) whether the trial court abused its discretion when it only awarded a portion of the expert witness fees.
II.
FACTS AND PROCEDURAL HISTORY
On June 8, 2012, Mr. McCarthy went to North City Park in Opelousas
to dry off his freshly-washed pickup truck. Mr. McCarthy parked under a Bradford
pear tree and started to dry off his truck when a large limb of the tree fell onto his truck. It is disputed whether the tree limb also fell on Mr. McCarthy and whether
he was inside or outside of the truck when the tree limb fell.
Mr. McCarthy claims he was standing outside of the truck when the
limb fell and struck him on the right shoulder, pinning him between the tree and
the truck, forcing him to crawl on his stomach to free himself. He was driven by
his wife to Opelousas General Hospital for emergency treatment and was given
pain medication. On June 10, 2012, Mr. McCarthy returned to Opelousas General
Hospital because he was still in pain and experiencing weakness. Mr. McCarthy
also sought treatment from Dr. Bozzelle in Lafayette before switching to Dr.
Thomas at Wellness in Opelousas because it was closer to home. He saw Dr.
Thomas and Dr. Bozzelle between his regular checkups with his family doctor, Dr.
White.
Mr. McCarthy sued the City. At trial, Mr. McCarthy’s counsel did not
call any of Mr. McCarthy’s physicians to testify about his injuries. The trial court
was presented with bills from the emergency room that did not specify treatment,
and chart notes from Mr. McCarthy’s various doctors’ appointments which
contained contradictory reports of Mr. McCarthy’s accident. In Dr. Thomas’s
notes, he says Mr. McCarthy was hit by the tree while standing by his truck.
Conversely, Dr. White wrote that Mr. McCarthy became injured trying to get out
of the way as Mr. McCarthy moved abruptly when the tree fell on his truck.
During the trial, witness testimony contradicted Mr. McCarthy’s own
testimony, as well as the testimony of other witnesses. Mr. McCarthy’s counsel
was able to establish that the tree had a defective condition for which the City had
constructive notice, that the condition of the tree posed an unreasonable risk of
harm and was the cause-in-fact of the branch breaking and causing damages. This
2 was established through the testimony of park employees and expert arborist,
Robert Thibodeaux.
The court heard testimony from Mr. McCarthy’s two daughters;
Marlin Jones, a former park employee; Romalis Thomas, an Opelousas Police
Department Detective; Tommy Brown, a park employee; and the park supervisor,
Clarence Barrow.
Marlin Jones’s Testimony
Marlin Jones testified that he was at the park on the day of the
accident working in the weight room. Mr. Jones testified that while he was sitting
in his own vehicle parked about one-hundred and fifty feet away from Mr.
McCarthy’s truck, he saw the tree fall down through his rearview mirror. He
stated that Mr. McCarthy was standing outside his truck and was toward the back
side of his truck when the tree fell. Mr. Jones testified that after the tree fell, he got
out of his vehicle, saw Mr. McCarthy’s feet on the ground, became nervous
because he did not know whether Mr. McCarthy was dead or alive, and ran into the
weight room to call Mr. McCarthy’s son, Carl. Mr. Jones testified that after the
tree fell, Mr. McCarthy was under the tree with his feet pointing up. However, Mr.
Jones does not recall being able to reach Carl so he stayed in the gym, and went
outside after a few minutes. After briefly returning to the weight room, Mr. Jones
testified that the tree limb had been removed and Mr. McCarthy was sitting in his
truck and his son was talking to him. No phone records were submitted into
evidence, and Carl did not testify at trial.
The trial court found Mr. Jones’s testimony lacked credibility. Mr.
Jones said he withheld information from the attorney for the City because he did
3 not want to get involved. Additionally, the trial court did not believe Mr. Jones
would not either immediately call 911 for help or call a park supervisor. The trial
court further noted that Mr. Jones said that the tree had been removed when he
came back out of the weight room, even though the limb had to be removed by
heavy equipment which would have taken longer than a few minutes. The trial
court found that Mr. Jones’s testimony contradicted the testimony of Mr.
McCarthy and Tommy Brown about Mr. McCarthy’s location when the tree fell
and how he got out from under the tree.
Earl McCarthy, Sr.’s Testimony
Mr. McCarthy testified that he washed his car, went home to get a
shammy, and then went to the park and started drying off his truck. As he was
drying off his windshield near the driver’s side’s mirror, suddenly the tree limb hit
him on the back of the shoulder, knocking him onto his stomach and the ground
before he pushed up with his feet, taking his hand and dragging himself from the
right side of his left front tire and crawling out. Mr. McCarthy claimed that he
sustained injuries to his neck, back, and shoulder, causing him to seek medical
treatment at the emergency room twice, in addition to going to Dr. Bozzelle and
Dr. Thomas for treatment. Mr. McCarthy went to Dr. White for treatment
unrelated to the accident.
The trial court found that Mr. McCarthy’s testimony was not credible
because it could not reconcile Mr. McCarthy saying he crawled on his stomach
with Mr. Jones saying he saw Mr. McCarthy with his feet up. Mr. McCarthy also
testified that when he got up he saw a park ranger, Jerome Richardson, who he
described as crippled. Mr. McCarthy asked to use Mr. Richardson’s phone to call
4 his wife. Shortly thereafter, he saw a few other people, including Mr. Jones, in the
area.
Detective Romalis Thomas’s Testimony
The court also heard testimony from Detective Romalis Thomas. Det.
Thomas was working off-duty detail at the park’s pool when dispatch notified him
of the incident, and he responded. Det. Thomas spoke to Mr. McCarthy who said
he had been standing by his truck when the tree fell and hit him and the truck. Det.
Thomas filled out an accident report at the scene and included photos (Exhibit “P-
16”) that he took at the time of the incident, prior to the removal of the tree. Det.
Thomas testified that he did not interview any witnesses at the scene and only
spoke to Mr. McCarthy and possibly to the responding EMS but could not recall if
he had spoken to the EMS.
Mr. McCarthy informed Det. Thomas that the tree fell on him and his
truck. Det. Thomas noted that he found it strange that he said the tree fell on him
because “he looked well.” Det. Thomas admitted he originally thought the whole
tree had fallen on Mr. McCarthy when he received the dispatch; however, upon
arrival at the scene, he learned it was only the large limb and branches.
Furthermore, Det. Thomas opined that Mr. McCarthy looked fine. He qualified his
opinion that he was not a doctor and, therefore, could not truly assess Mr.
McCarthy’s pain. Det. Thomas did not see any debris, abrasions, scrapes, or cuts
on Mr. McCarthy.
The trial court found Det. Thomas was a credible witness. In its
Reasons for Judgment, the trial court noted that based on the photographs, and Det.
Thomas noting that Mr. McCarthy had no tears to his clothing, and was not
5 scraped or bleeding, the trial court found it difficult to believe that a limb of that
size could fall on someone, and the individual could belly-crawl out and have no
dirt on the individual’s clothing or hands.
Tommy Brown’s Testimony
Tommy Brown, a park employee who was mowing the lawn at the
park on the day of the accident, testified that Mr. McCarthy was sitting in his truck
at the time of the accident and he helped Mr. McCarthy out of the truck. Mr.
Brown testified that he was putting away the riding mower in the shed around 3:25
p.m. or 3:30 p.m. prior to when he usually leaves the park at 3:45 p.m. As Mr.
Brown put away the mower, he turned to see the tree fall on a truck. He then
locked the shed and proceeded to the truck where he found Mr. McCarthy inside
the truck on the driver’s side. Mr. Brown told Mr. McCarthy that he would have to
get out on the passenger side of the truck. Mr. Brown testified that he aided Mr.
McCarthy in getting out of his truck by lifting the limbs with one hand and opening
the truck’s passenger door with his other hand. After Mr. McCarthy got out of the
passenger side of the truck, he went to the back of the truck and wanted to make a
call but could not dial the phone. Mr. McCarthy handed Mr. Brown his phone to
assist in making the call. No phone records were submitted into evidence to
corroborate the phone call. No other witnesses verified this, and Mr. McCarthy’s
testimony did not match this account. Notably, Mr. Brown reports to Jerome
Richardson at North Park. Mr. Brown did not make a statement to police nor did
he remain at the scene.
6 Additional Testimony and Trial Court Findings
Mr. McCarthy’s daughters also testified at trial, and the trial court
found them to be credible witnesses but did not rely on their testimony. The trial
court noted that the daughters’ testimony only established that they were at home
with their mother and Carl when someone called to tell them something happened
at the park. Carl took off running while their mother gathered towels, not knowing
whether Mr. McCarthy would be bloody.
Mr. McCarthy’s daughters noted that their father no longer could lift
large feed bags to feed his hogs and stopped playing with his grandchildren and
volunteering at church like he had before the incident.
Mr. McCarthy did not call any doctors to testify at trial. In the record
are treatment notes from the chiropractor, and Mr. McCarthy’s family doctor, Dr.
White. The chiropractor’s notes that Mr. McCarthy had issues with range of
motion on April 1, 2013, and again on April 3, 2013, but Mr. McCarthy’s counsel
notes that Mr. McCarthy obtained relief on April 2, 2013. Further, the notes from
Dr. White reflect that Mr. McCarthy had full range of motion in June 2012.
The trial court described how there was a “lack of detailed medical
records, covering the emergency room visits, that Mr. McCarthy said he had, [and
it] would have been nice to have those detailed, at least the detailed billing to show
me what was done, but more importantly, the actual records.” The trial judge
further noted that he was not provided with the records from the EMS that are
created when they respond but do not transport a patient.
The trial court wrote that it did not think that Mr. McCarthy could
establish notice. However, Mr. Brown testified he recognized the tree rot from the
photos even though he had not seen it beforehand. The trial court determined that
7 this testimony established constructive notice. After expert arborist, Mr.
Thibodeaux testified, the trial court found that “the defect in the tree was the cause-
in-fact of that branch breaking, which ultimately fell on Mr. McCarthy’s vehicle,
causing damages.” Accordingly, the trial court awarded $5,073.66 to Mr.
McCarthy in property damages with legal interest for the cost of vehicle repair of
$3,785.36 and the cost of the rental car of $1,288.30.
However, the trial court found that Mr. McCarthy failed to meet his
burden of proof that he “received any physical injury as a result of this incident ....”
The trial court reached this conclusion primarily on credibility determinations.
The trial court did not find Mr. Jones to be a credible witness because it neither
believed his testimony that Mr. McCarthy’s toes were up nor did the trial court
believe that the limb had been removed by the time Mr. Jones exited the weight
room ten minutes after the tree had fallen. Additionally, the trial court did not find
that Mr. McCarthy was a credible witness because his testimony that he belly-
crawled was contradictory to Mr. Jones’s testimony, to Det. Thomas’s testimony
that Mr. McCarthy looked unscratched and was not dirty, and to Mr. Brown’s
testimony that Mr. McCarthy was in his car when the tree fell. The contradictory
testimony, coupled with the lack of medical evidence and physician testimony, led
the trial court to conclude that Mr. McCarthy did not sustain physical injuries.
Subsequently, a hearing on a motion to tax costs of the expert fees of
Mr. Thibodeaux and to award attorney fees was held on May 8, 2017. The trial
court found there was no basis for attorney fees and awarded $2,500 in expert
witness fees to Mr. Thibodeaux. Mr. McCarthy’s counsel argued for attorney fees
under La.R.S. 13:1511(A). However, the trial court noted that the statute cited by
Mr. McCarthy’s counsel was for property damaged during a taking and was
8 inapplicable to “general negligence or strict liability.” Regarding expert witness
fees, Mr. McCarthy’s counsel submitted a bill from Mr. Thibodeaux referencing
six invoices. No testimony to substantiate the six invoices or regarding how much
time Mr. Thibodeaux spent preparing an expert report was introduced. The trial
court found Mr. Thibodeaux was present in court to testify for one day and visited
the site of the accident once.
III.
STANDARD OF REVIEW
“A court of appeal my not set aside a trial court’s or a jury’s finding
of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’” Stobart v.
State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993)
(quoting Rosell v. ESCO, 549 So.2d 840 (La.1989)). “[T]he issue to be resolved
by a reviewing court is not whether the trier of fact was right or wrong, but
whether the factfinder’s conclusion was a reasonable one.” Stobart, 617 So.2d at
882. “The assessment of ‘quantum,’ or the appropriate damages, by a trial judge or
jury is a determination of fact, one entitled to great deference on review.”
Wainwright v. Fontenot, 00-492, p. 6 (La. 10/17/00), 774 So.2d 70, 74 (quoting
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993)). “The fixing
of expert witness fees is within the discretion of the trial court which will not be
disturbed by an appellate court in the absence of abuse of discretion.” Esté v. State
Farm Ins. Companies, 96-99, p. 14 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 859
(citing State, DOTD v. Nelken, 628 So.2d 1279 (La.App. 3 Cir.1993)).
9 IV.
LAW AND DISCUSSION
First, this court must consider whether the trial court erred in its
credibility determinations. The trial court found that Mr. McCarthy was not
credible, and Mr. Brown was credible. Mr. McCarthy’s counsel argues that the
trial court used its credibility determinations to deny Mr. McCarthy an award for
bodily injuries. Mr. McCarthy asserts that there is objective evidence to support
that he sustained injuries. The City argues that the trial court did not err in its
credibility determinations because there was conflicting testimony from Mr.
McCarthy, Mr. Jones, and Mr. Brown. Mr. McCarthy also alleges that the trial
court erred in finding Mr. Brown was credible when there was no objective
evidence to support Mr. Brown’s testimony. We disagree.
Under the two-part test established in Arceneaux v. Domingue, the
appellate court must first “find . . . there is a reasonable factual basis for the finding
of the trial court, and . . . further determine that the record established that the
finding is not clearly wrong (manifestly erroneous).” Mart v. Hill, 505 So.2d
1120, 1127 (La.1987) (quoting Arceneaux v. Domingue, 365 So.2d 1330, 1333
(La.1978)). “[T]he jury or trial judge may, and should, assess the credibility of
experts who testify at trial, as well as that of lay witnesses, to determine the most
credible and realistic evidence and the fact finder’s determination of the credibility
of those witnesses will not be disturbed unless found to be clearly erroneous.”
Guidry v. Davis, 382 So.2d 250, 253 (La.App. 3 Cir. 1980) (citing Green v. State,
Southwest Louisiana Charity Hosp., 309 So.2d 706 (La.App. 3 Cir. 1975); Monette
v. Aetna Cas. Sur. Co., 352 So.2d 423 (La.App. 3 Cir. 1977)).
10 In West v. Williams, 30,842, pp. 3-4 (La.App. 2 Cir. 8/19/98), 717
So.2d 1224, 1225, the second circuit held that the plaintiff involved in a low-
impact car accident in a grocery store parking lot did not meet her burden that the
“injuries [she] complained of were caused by the fault of the defendant.” The
second circuit found that the trial court record “amply support[ed] the trial court’s
factual and credibility assessments.” Id. The plaintiff provided testimony that was
inconsistent with her daughter’s testimony, her own statement made to the
investigating police officer, and with the notes taken by her chiropractor. Id.
Additionally, in Young v. Allstate Ins. Co., 45,512 (La.App. 2 Cir.
8/8/10), 47 So.3d 595, the second circuit affirmed the trial court’s judgment in
favor of the defendant in a car accident, finding that the plaintiffs’ testimonies
contradicted each other on several points and the trial court was not clearly wrong.
The plaintiffs argued that the defendant’s testimony was “self-serving” and
“uncorroborated.” Id. at 597. The second circuit maintained that the trial court
was in the better position to make credibility determinations, especially because
only the parties testified in court and “everything else was depositions, photos, or
other filings.” Id. at 598.
In this case, we find no error in the trial court’s credibility
determinations. Like the plaintiff in West, Mr. McCarthy’s testimony here was
inconsistent with nearly all other testimony about his location when the tree fell,
and how he extracted himself from under the limb or from inside the cab of the
truck. Additionally, the trial court found Mr. Brown’s testimony that Mr.
McCarthy was inside the truck was credible along with Det. Thomas’s testimony
that Mr. McCarthy looked clean, unmarked, and uninjured.
11 Like the plaintiffs in Young, Mr. McCarthy alleges that Mr. Brown’s
testimony was uncorroborated and self-serving as a park employee for the City.
However, the trial court found that Mr. Brown established the tree was rotten from
photos, which clearly provided no benefit to the City’s defense, and had no reason
to lie about whether Mr. McCarthy was inside or outside of the truck. The trial
court in its discretion found that Mr. Brown was credible when he testified that Mr.
McCarthy was inside his truck when the tree fell, rather than outside of the truck as
Mr. McCarthy and Mr. Jones recounted. However, the trial court determined that
there was a lack of evidentiary support for Mr. McCarthy’s bodily injuries.
Further, the trial court found that the medical records provided by Mr. McCarthy
impeached Mr. McCarthy’s own testimony because there were conflicting
descriptions about how he sustained the injuries. The trial court found that Mr.
McCarthy was not credible and found that Mr. McCarthy did not sustain physical
injuries. The photos and other evidence support the trial court’s credibility
determinations. We find the trial court was not clearly wrong when it found Mr.
McCarthy was not credible and Mr. Brown was credible regardless of objective
evidence supporting Mr. Brown’s testimony.
We also find that the lack of medical records and physician testimony
established an adverse presumption that Mr. McCarthy had not sustained injuries.
“[W]hen a litigant destroys, conceals, or fails to produce evidence within his or her
control, it gives rise to an adverse presumption that had the evidence been
produced, it would have been detrimental to the litigant’s case.” Allstate Ins. Co.
v. Ford Motor Co., 00-710, p. 4 (La.App. 3 Cir. 11/2/00), 772 So.2d 339, 342. The
medical records provided were emergency room bills without chart notes which
could have established injury. The chiropractor records that were introduced
12 contradicted the records from Dr. White. No doctors testified at trial to corroborate
Mr. McCarthy’s testimony. If Mr. McCarthy’s treating physicians had testified
and/or if Mr. McCarthy provided more detailed medical records, it may have
established Mr. McCarthy’s injuries or shed light on discrepancies between the
physicians’ chart notes.
Next, this court must address whether the trial court erred in its denial
of specific damages and general damages. Mr. McCarthy alleged that the trial
court abused its discretion in its denial of personal injury damages because the trial
court found the City was negligent. Mr. McCarthy contends that he is discharged
of the burden of proof, suggesting that the applicable legal presumption is that if
Mr. McCarthy was in good health before the accident and the condition appears or
manifests thereafter, then the causal connection between the accident and injury is
established, provided that medical evidence supports the connection. Mr.
McCarthy cites Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989) and
Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977) to
support this presumption. We disagree.
In Morris, the Louisiana Supreme Court reversed the court of appeal
and reinstated the trial court’s judgment, finding the trial court did not abuse its
discretion in making the damage award. Morris, 553 So.2d 427. The supreme
court found that the school board was liable for a twelve-year-old student’s fall on
wet asphalt under a water fountain on school property. Id. The supreme court
found the trial court correctly determined: (1) the school board’s conduct was the
cause-in-fact of the fall; (2) the school board owed a duty to the student, which was
breached; and (3) the school board was negligent. Id.
13 Mr. McCarthy also cites Lucas, which established the legal
presumption for the causal connection between injury and accident in workers’
compensation cases. This presumption is inapplicable here because Lucas involves
the statutorily and jurisprudentially established presumption for workers’
compensation-related injuries.
Louisiana Civil Code Article 2315(A), provides:
“Every act whatever of man that causes damages to another obliges him by whose fault it happened to repair it.”
Under La.Civ.Code art. 2316, “Every person is responsible for the damage he
occasions not merely by his act, but by his negligence, his imprudence, or his want
of skill.” Additionally, under La.Civ.Code art. 1999, “When damages are
insusceptible to precise measurement, much discretion shall be left to the court for
the reasonable assessment of the damages.”
In Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70, the
Louisiana Supreme Court reinstated the award of $1,500 in medical expenses,
finding the jury did not abuse its discretion when the jury found that the
pharmacy’s conduct was the legal cause of the minor-plaintiff’s injuries when the
pharmacy incorrectly filled the Prozac prescription which led to the minor’s
overdose. The lower court found that the defendant was “at fault for the plaintiff’s
injuries and liable to him for his medical expenses incurred yet has declined to
make any award at all for general damages.” Id. at 74. The supreme court upheld
the award of medical expenses, while acknowledging that courts of appeal
recognize “that under certain circumstances the evidence of record supports both
an award of medical expenses and a concurrent denial of general damages.” Id. at
75.
14 In Olivier v. Sears Roebuck & Co., 499 So.2d 1058 (La.App. 3 Cir.
1986), this court held that the trial court did not abuse its discretion when it found
that the plaintiff failed to meet her burden of proof establishing a new back injury
from an automobile accident. We found that the trial court did not abuse its
discretion in awarding $150 to the plaintiff for unspecified damages, possibly for a
checkup following the accident, while denying damages, citing a lack of objective
evidence proving injury. The testimony provided by the plaintiff’s physicians
contradicted the testimony of the plaintiff. Additionally, we upheld the award for
property damages of $1,100 for repair of the pickup truck.
In this case, we find that the trial court did not abuse its discretion in
its denial of general or specific damages. In Wainwright, the supreme court found
fault and causation but did not award damages even though the plaintiff was
injured. Here, however, the trial court did not find that Mr. McCarthy was injured
even though the trial court found that the City’s tree was the cause-in-fact for the
damage to Mr. McCarthy’s truck. Although the trial court found that the defective
tree was the cause-in-fact for the property damage, the failure to establish bodily
injury precluded the awards of general and specific damages.
Similar to the plaintiff in Olivier, Mr. McCarthy lacked objective
evidence of injury. In Olivier, the plaintiff was unable to establish injury even
with physician testimony—which was noted as contradictory. Here, Mr. McCarthy
did not have a single physician testify about his medical treatment, presenting an
even weaker case than the plaintiff in Olivier. Accordingly, we hold that the trial
court did not abuse its discretion in its denial of general and specific damages.
Finally, this court must review whether the trial court abused its
discretion in awarding only a portion of expert witness fees. Mr. McCarthy asserts
15 that arborist, Mr. Thibodeaux, was only awarded $2,500 but was owed $6,000.
Mr. McCarthy cites La.R.S. 13:3666 to support their contention that the arborist
was entitled to $6,000. The City argues that Mr. McCarthy only provided a letter
or bill from Mr. Thibodeaux which referenced six invoices without a breakdown of
services to show how the services were billed.
Louisiana Revised Statutes 13:3666, in pertinent part, provides:
A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make a scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court with reference to the value of time employed and the degree of learning or skill required.
B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:
(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside of the presence of the jury, the court shall determine the amount thereof and include the same.
In Orea v. Scalian, 32,622 (La.App. 2 Cir. 1/26/00), 750 So.2d 483,
the second circuit held that the trial court did not abuse its discretion in awarding a
portion of the expert witness fees sought for an automobile repairman in a car
accident case because the plaintiffs only requested recovery for seven hours of
preparation despite claiming that the expert spent over nine hours preparing and
testifying. The court determined the particular witness was adequately
compensated based on the trial court’s analysis of the expert’s affidavit detailing
time spent examining the truck and at the crash site, in court, and travel time.
16 Here, the trial court awarded Mr. Thibodeaux for one site visit,
preparation of the expert report, and the half-day he spent testifying in court. The
invoices submitted did not provide a detailed breakdown to suggest more
preparation. Moreover, there was no affidavit from Mr. Thibodeaux to support that
his services cost $6,000. We uphold the trial court’s award of $2,500 in expert
witness fees to Mr. Thibodeaux, finding the trial court did not abuse its discretion.
V.
CONCLUSION
Based upon the foregoing principles, this court finds the trial court
was not manifestly erroneous in its credibility determinations. Furthermore, this
court affirms the trial court judgment denying specific and general damages and
upholds the expert witness fee of $2,500. Costs of this appeal are assessed to the
Appellant, Earl McCarthy, Sr.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULE 2-16.3, UNIFORM RULES—COURTS OF APPEAL.