Green v. Spriggs

930 So. 2d 1052, 2006 WL 1082818
CourtLouisiana Court of Appeal
DecidedApril 26, 2006
DocketNo. 05-1105
StatusPublished
Cited by2 cases

This text of 930 So. 2d 1052 (Green v. Spriggs) 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
Green v. Spriggs, 930 So. 2d 1052, 2006 WL 1082818 (La. Ct. App. 2006).

Opinion

GREMILLION, Judge.

hThe plaintiff, Phyllis Green, appeals rulings made by the trial court and damage awards and findings of fault made by the jury in relation to an automobile accident. The trial court excluded Green’s submissions of evidence finding that both were untimely. Further, Green argues that the jury erred by awarding her nothing for loss of enjoyment of life, insufficient damages for permanent disfigurement, and in finding her twenty-five percent at fault in causing the accident. We affirm the judgment as amended.

FACTS

On August 24, 2000, Green was traveling west on the two-lane Louisiana Highway 14 in Vermilion Parish, just outside of Abbeville, Louisiana. Ahead of her was a vehicle driven by Edwin Spriggs. Spriggs was test-driving a vehicle owned by Gulf State Bank and insured by the Fidelity and Deposit Companies (F & D). Although the testimony is contradictory as to what exactly occurred, Green attempted to pass Spriggs just as he executed a left turn into a private driveway. The resulting impact caused Green’s vehicle to flip several times before coming to rest headed in an easterly direction. Spriggs’ vehicle [1054]*1054was spun around by the impact and also came to rest headed east.

Subsequently, Green filed suit against Spriggs and F & D (referred to collectively as Spriggs) seeking damages for injuries she suffered in the accident. Spriggs answered the petition and requested a trial by jury. The matter proceeded to a jury trial, after which it awarded Green $49,998.32 in damages, but found her 1 ^twenty-five percent at fault in causing the accident. Judgment was rendered in this matter on November 12, 2004. This appeal by Green followed.

ISSUES

On appeal, Green raises four assignments of error. She claims that the trial court erred in excluding the testimony of Dr. Kenneth Bouillion, a psychologist, and in excluding photographs of her scars caused by broken glass. She further argues that the jury erred in failing to award her damages for loss of enjoyment of life and sufficient damages for the permanent disfigurement she suffered as a result of the accident. Finally, she argues that the jury erred in finding her twenty-five percent at fault in causing the accident.

PRELIMINARY RULINGS

In her first two assignments of error, Green argues that the trial court erred in excluding evidence she would have presented during her case-in-chief. First, she argues that the trial court erred in excluding a report by Dr. Bouillion, pertaining to the mental anguish she suffered due to disfiguring scars caused by glass broken during the accident. Next, she claims that the trial court erred in excluding all photographs of her scarring taken after September 2001, including photographs taken three days prior to the start of trial.

The trial court excluded both the report and the photographs as being presented untimely. Although Green’s counsel informed Spriggs of his intention to add Dr. Bouillion to the previously submitted witness list, via a March 24, 2004 letter, and included his report as an exhibit in his pretrial memorandum of March 30, 2004, he did not actually receive Dr. Bouillioris report until April 1, 2004. A copy of that ^report was faxed to Spriggs’ counsel that same day. The excluded photographs were taken on December 31, 2001, June 3, 2002, March 24, 2003, and April 2, 2004, and were presented by Green’s counsel for submission into evidence on April 6, 2004, the second day of the trial. However, none of these photographs were ever provided to Spriggs prior to trial.

With regard to Dr. Bouillioris report, Green argues that it was furnished to Spriggs within the sixty-day deadline provided by the trial court’s scheduling order. Although a copy of the trial court’s order was not included in the record, a standard scheduling order was obtained from the trial court, which provides for the “FINAL EXCHANGE OF COPIES OF REPORTS OF TREATING PHYSICIANS” at sixty days prior to trial.

It should be noted that trial in this matter was originally scheduled for January 26, 2004. On January 14, 2004, Green filed a Motion to Withdraw and Substitute Counsel of Record so that she could substitute her current counsel for her original counsel. On January 16, 2004, the trial court granted her motion and continued the trial in this matter until April 5, 2004. The trial court’s scheduling order was evidently sent out on February 6, 2004, which required the exchange of reports by treating physicians at sixty days prior to trial. On March 31, 2004, Green filed her pretrial memorandum, which included Dr. Bouillioris report as an exhibit. A copy of this report was sent to Spriggs on April 1, 2004.

[1055]*1055Green argues that the report was sent to Spriggs within the sixty-day deadline mandated by the trial court’s scheduling order. Although Green’s counsel may have submitted the report within sixty days of the trial court’s February 6, 2004 |4scheduling order, we find that he has misinterpreted the order’s language. The order requires the exchange of reports sixty days prior to the date of trial, not within sixty days of the order’s receipt.

La. C.C.P. art. 1551 gives a court wide discretion to provide for implementation of a pretrial order and to insure that the items of the pretrial order are enforced. The theory inherent in pretrial procedure is the avoidance of surprise and the allowance of the orderly disposition of the case. The pretrial order controls the subsequent course of action, though it can be modified at trial to prevent substantial injustice. Vernon v. Wade Correctional Center, 26,053 (La.App.2d Cir.8/19/94), 642 So.2d 684. The trier of fact is given broad discretion to determine whether to modify a pretrial order. This discretion is controlled by the principle that it must be exercised to prevent substantial injustice to the parties who have relied on the pretrial rulings or agreements and structured the preparation and presentation of their cases accordingly. Absent an abuse of discretion, the trier of fact’s decision will be upheld. Vernon v. Wade Correctional Center, supra.

Robinson v. Apria Healthcare, Inc., 38,438, p. 13 (La.App. 2 Cir. 5/27/04), 874 So.2d 418, 426.

In this instance, the trial court excluded Dr. Bouillion’s report as its submission violated the scheduling order and because its late presentation denied Spriggs the right to depose Dr. Bouillion on its contents and the right of cross-examination during the trial. Although Green’s counsel did come to this fight late, we find that he still had sufficient time to obtain a psychological evaluation of Green and to get that information to Spriggs. To allow the report into evidence would result in a substantial injustice to Spriggs for the very reasons enunciated by the trial court. Accordingly, we find that the trial court did not abuse its vast discretion in excluding Dr. Bouillion’s report from evidence.

We hold likewise with regard to the excluded photographs. The trial court excluded those photographs as Green failed to provide them to Spriggs prior to |RtriaI. Once again, this decision was within the trial court’s discretion and we find no abuse of that discretion. Accordingly, these two assignments of error are without merit.

DAMAGES

In her third assignment of error, Green argues that the jury awarded her insufficient damages for permanent disfigurement and erred in awarding her zero damages for loss of enjoyment of life.

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

Related

McBride v. Lichtenstein
260 So. 3d 658 (Louisiana Court of Appeal, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
930 So. 2d 1052, 2006 WL 1082818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-spriggs-lactapp-2006.