Fowler v. Bauman

663 So. 2d 438, 1995 WL 599971
CourtLouisiana Court of Appeal
DecidedOctober 12, 1995
Docket95-CA-0145
StatusPublished
Cited by8 cases

This text of 663 So. 2d 438 (Fowler v. Bauman) 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
Fowler v. Bauman, 663 So. 2d 438, 1995 WL 599971 (La. Ct. App. 1995).

Opinion

663 So.2d 438 (1995)

Felice Foster FOWLER, wife of/and Gene D. Fowler
v.
Sam J. BAUMAN, Jr., Union Carbide Corporation, et al.

No. 95-CA-0145.

Court of Appeal of Louisiana, Fourth Circuit.

October 12, 1995.

*439 William J. Faustermann, Jr., Slidell, for plaintiffs/appellants.

Dominic J. Gianna, Marshall J. Simien, Jr., Middleberg, Riddle & Gianna, New Orleans, for defendants/appellees.

Before SCHOTT, C.J., and KLEES and PLOTKIN, JJ.

PLOTKIN, Judge.

Plaintiffs Felice and Gene Fowler appeal a trial court judgment on a jury verdict in favor of defendant Sam J. Bauman Jr. We affirm.

Facts

On March 16, 1977, Mrs. Fowler suffered injury to various parts of her body as a result of an accident between the 1969 Chevrolet Nova she was driving and a tractor-trailer driven by Mr. Bauman on Interstate 10 East just before the Louisa Street exit in the City of New Orleans. By the time of trial, 17 years after the accident, most of Mrs. Fowler's injuries had been resolved; however, she continued to experience pain in her neck and shoulders.

At trial, the drivers of the two vehicles described the accident very differently. Mrs. Fowler claims that she was driving in the right lane when the tractor-trailer driven by Mr. Bauman, which had been in the center lane, started moving into the right lane, forcing her car up against the right guard rail. As a result of the accident, she lost consciousness. She later awoke to find that her car had collided with the left guard rail.

Mr. Bauman's testimony agrees with Mrs. Fowler's testimony in two respects: (1) He agrees that the collision between the vehicles occurred while he was in the process of moving from the center lane of traffic to the right lane, and (2) he agrees that Mrs. Fowler's car ended up against the left guardrail of the interstate. However, Mr. Bauman claims that Mrs. Fowler's car was in the left lane of the interstate at the time of the collision. He claims that she ran into him as he was changing lanes, then lost control of her vehicle, careening into the left guard rail.

*440 The only expert testimony presented at trial was the testimony of Alan Wright, who stated that the physical damage to the two vehicles indicated that the accident occurred as described by Mr. Bauman, and that it could not have occurred as described by Mrs. Fowler. In order to reach his conclusion, he relied on photographs of the two vehicles, as well as specifications and measurements of the two vehicles and of the interstate highway at the point of the collision.

Following a two-day trial, the jury returned a verdict in favor of the defendant, which was entered as the judgment of the trial court. On the verdict form, the jury indicated both that Mr. Bauman was not negligent and that Mrs. Fowler was negligent in causing the accident. The plaintiffs filed a motion for new trial, which the trial court denied.

Mr. and Mrs. Fowler appeal, making the following three assignments of error:

1. The jury was clearly wrong in concluding that the defendant, Sam J. Bauman, Jr. was not negligent.
2. The trial court erred by failing to convene court after a specific jury request for a document referred to in testimony but not admitted into evidence.
3. The trial court erred by failing to exclude the testimony of Alan Wright, and/or in excluding and limiting testimony of plaintiffs' expert and lay witnesses.

The third assignment of error will be addressed first since it impacts on the discussion of the first assignment of error.

Admission and exclusion of testimony

By their third assignment of error, the plaintiffs complain both of the admission of testimony from the defendant's expert witness, Alan Wright, and the exclusion of "plaintiffs' expert and lay witnesses." In their brief, the plaintiffs take issue with the admission of Mr. Wright's testimony for two reasons. First, the plaintiffs claim that Mr. Wright's testimony should not have been admitted because he failed to prove that his conclusions were based on methodology which is "generally accepted in the scientific community" as required by this court's opinion in Clement v. Griffin, 91-1664 (La.App. 4th Cir. 3/3/94), 634 So.2d 412, writs denied 94-0717 (La. 5/20/94) 637 So.2d 478, 479 which adopted the standards for acceptance of expert testimony established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, ___ U.S. ___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Second, the plaintiffs claim that Mr. Wright's expert testimony should not have been admitted because his conclusions concerning the cause of the accident were reached during an examination which occurred after the discovery cut-off date listed in the pre-trial order.

The plaintiffs first claim that Mr. Wright's testimony was inadmissible under the standards established by Clement. However, a review of the two cases reveals that the expert testimony offered in the instant case is very different from the expert testimony offered in the Clement case. In Clement, the expert testified that a tire contained a factory defect, a conclusion based purely on the discovery of a minuscule "black particle" discovered and photographed by another examiner. That methodology was suspect because it was unprecedented. Thus, this court required the application of the Daubert factors.

In the instant case, the expert testimony was based on accident reconstruction principles which have been widely accepted by courts for many years. Mr. Wright stated in his testimony that his opinions were based on "the law of physics and engineering," which we find is "generally accepted in the scientific community." As the defendant points out, the plaintiffs failed to raise any objections to Mr. Wright's qualifications or to his methodology at trial. We find no merit to the plaintiffs' argument that Mr. Wright's testimony was improperly admitted under the Clement standards for admission of expert testimony.

The plaintiffs also claim that Mr. Wright's testimony was inadmissible because his conclusions are based on work performed after the discovery cut-off date. The pre-trial order entered in the instant case on April 19, 1991, lists July 5, 1991, as the "Deadline for exchanging of defendant's expert *441 witness list." On that day, the defendant filed an expert witness list which listed "Allen Wright or Lee Carr (Carr Engineering)" as an expert witness. At trial, Mr. Wright stated that he started performing his reconstruction in July of 1991. The plaintiffs claim that Mr. Wright should not have been allowed to testify because his testimony was based on facts and circumstances given him after the discovery cut-off date.

We find no merit to this argument. The defendant submitted its expert witness list timely and properly included Mr. Wright's name on that list. Nothing in the pre-trial order case indicates that July 5, 1991, was the cut-off date for witnesses to review and form opinions about the case. The plaintiffs do not claim that they were denied the opportunity to depose Mr. Wright prior to trial, nor do they claim any other prejudice resulting from the fact that Mr. Wright's opinions were formed after the date for the defendant to submit its expert witness list.

Coupled with this argument, the plaintiffs intimate that the defendant was given more favorable treatment concerning the admission of expert testimony than they received from the trial judge.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Courville v. Allstate Insurance Co.
215 So. 3d 310 (Louisiana Court of Appeal, 2017)
State v. FURBUSH
27 A.3d 497 (Connecticut Appellate Court, 2011)
Taylor v. Progressive SEC. Ins. Co.
33 So. 3d 1081 (Louisiana Court of Appeal, 2010)
Nancy Taylor v. Progressive Security Ins. Co.
Louisiana Court of Appeal, 2010
Hallmark v. Eldridge
189 P.3d 646 (Nevada Supreme Court, 2008)
SOUTHERN CASING OF LA., INC. v. Houma Avionics, Inc.
809 So. 2d 1040 (Louisiana Court of Appeal, 2001)
Ballam v. Seibels Bruce Ins. Co.
712 So. 2d 543 (Louisiana Court of Appeal, 1998)
Bryant v. Tidy Building Services
678 So. 2d 48 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
663 So. 2d 438, 1995 WL 599971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fowler-v-bauman-lactapp-1995.