STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 04-1500
JANIS SQUARE
VERSUS
MARJORIE LEBLANC, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2001-0051-K HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Glenn B. Gremillion, Billy Howard Ezell, and James T. Genovese, Judges.
AFFIRMED.
Robert Ray Broussard Craig Wesley Marks Attorneys at Law P. O. Drawer 80827 Lafayette, LA 70598-0827 (337) 232-3333 Counsel for Plaintiff/Appellant: Janis Square Thomas Reginald Hightower, Jr. Patrick Wade Kee P. O. Drawer 51288 Lafayette, LA 70505 (337) 233-0555 Counsel for Defendants/Appellees: Shelter Insurance Company Marjorie LeBlanc GJL Investment Company
James D. Thomas, II Wall, Thomas, Riche & Wall P. O. Box 65168 Baton Rouge, LA 70896 (225) 928-0430 Counsel for Defendant/Appellee: Randall D. Lea, M.D.
Kevin Paul Tauzin Dozier & Tauzin 2901 Johnston Street, Suite 300 Lafayette, LA 70503 (337) 291-9292 Counsel for Intervenors/Appellees: Kevin Paul Tauzin Dozier & Tauzin EZELL, JUDGE.
Janis Square appeals a jury verdict awarding her $19,000 for an automobile
accident. Asserting several legal errors, Square claims that her damages should be
increased or, in the alternative, Square claims the jury verdict should be reversed and
the case remanded to the trial court for a new trial.
FACTS
On January 7, 2000, Square was stopped at a red light in the City of Lafayette
at the intersection of Cameron Street and West University Avenue. Directly behind
her was a vehicle driven by Majorie LeBlanc. LeBlanc explained that her foot
slipped off the brake and she ran into Square’s vehicle.
Corporal Don Thibodeaux, a police officer with the City of Lafayette Police
Department, investigated the accident. He happened to be in the unique position of
having his vehicle positioned behind LeBlanc’s vehicle, also stopped for the red light
when the accident occurred. He testified that LeBlanc was stopped before the
accident, LeBlanc’s vehicle seemed to move forward, and he heard no audible
evidence of a collision.
Prior to this accident, Square had been involved in another accident on January
29, 1999, in which she was also rear-ended. She suffered a herniated disc in her neck
which required surgery in August 1999. Her surgery was performed by Dr. Luiz de
Araujo, a neurosurgeon, who last saw Square before the accident at issue on
December 15, 1999. He planned to release Square to full-duty work if she kept
progressing. Dr. de Araujo received a call from Square on January 7, 2000, informing
him of her recent accident. Square was concerned because she had a strain in her
1 neck muscles where she had surgery a few months before. On February 2, Square
complained of lower back pain.
While Square’s neck strain resolved with no further problems, an MRI on
February 8, 2000, indicated a small central disc herniation at L5-S1. Dr. de Araujo
advised her to continue physical therapy and also referred her to Dr. Joseph Gillespie,
an anesthesiologist who provides chronic pain management.
Square began treatment with Cheryle Troxclair, a physical therapist, on January
20, 2000. On January 21, Square was reporting pain at her sacrum. By February 4,
the low back pain had worsened and was radiating into the right lower extremity to
the foot.
Dr. Gillespie saw Square on March 30, 2000. He noted complaints of lower
back pain, which was primarily right-sided with some bilateral foot and calf pain. He
injected the S1 joint.
On April 1, 2000, Square was traveling out-of-town, when she lifted her forty-
five pound son into the car. Square testified that her back gave out and she
experienced excruciating pain. She went to Sherman, north of Dallas, and sought
treatment in the Wilson N. Jones Medical Center emergency room. When she
returned home, Square went to see Dr. Gillespie on April 4.
Dr. Gillespie noted increased left leg pain. He observed that there was a
significant change from Square’s previous visit. Dr. Gillespie saw Square one final
time and attempted an epidural treatment.
Another MRI was performed on April 4, 2000. The MRI now indicated a large
ventral and left paracentral disc herniation at L5-S1 with posterior displacement of
the left S1 nerve root. Dr. Vidyadhar Akkaraju, a radiologist, testified that there were
2 no changes in the right-sided component of the disc. He also stated that there was no
indication of a left-sided component on the earlier February 8 MRI. Although Dr.
Akkaraju classified this as a progression from the first MRI, he did testify that
something happened between February 8 and April 4.
Dr. de Araujo explained that it was common for a patient to have a herniated
disc and expel another piece of cartilage through the same opening, so he also opined
that this was progression of the herniation noted on the February 8 MRI.
There was also medical testimony from the defense that the herniation seen on
the April 4 MRI was a separate event. Dr. Curtis Partington, a neuroradiologist,
testified a tear in the disc will not go from one side to the other. He explained that
if the herniation is going to enlarge from the previous tear, it will occur on the same
side.
On June 13, 2000, Dr. de Araujo performed a lumbar microdiscectomy in
which he removed a small part of the bone and released the nerve. Dr. de Araujo
opined that Square would make a full recovery in due time. He released her to
medium work. Dr. de Araujo saw Square on January 6, 2003, at which time he did
not suspect instability of the spine and did not see an indication for a fusion from the
MRI conducted at that time.
Square then went to see Dr. Louis Blanda, an orthopedic surgeon, on February
18, 2003. He noted symptoms of pain in the lower back and pain and numbness in
the left leg. Dr. Blanda observed that there was past surgery, but he was of the
opinion that the disc space had collapsed. He performed a disc fusion at L5-S1 and
L4-5. Dr. Blanda testified that Square’s pain was eliminated with this surgery.
3 Square filed suit on January 2, 2001, against LeBlanc and her employer, GJL
Investment Company, and its insurer, Shelter Mutual Insurance Company. Prior to
trial, it was stipulated that LeBlanc was at fault. Thereafter, trial was held on
damages from December 8 to December 18, 2003. The jury returned a verdict finding
that Square was injured as a result of the accident. It awarded her $10,000 for
physical and mental pain and suffering and disability. Past medical expenses were
awarded in the amount of $7,000, and lost past wages were awarded in the amount
of $2,000. Square appealed the verdict.
DAUBERT
Square challenges the testimony of two of the defense experts on appeal, that
of Dr. Monroe Laborde, an orthopedic surgeon and biomedical engineer, and also that
of Dr. Curtis Partington, a diagnostic neuroradiologist. Prior to trial, Square had filed
a motion in limine concerning both Drs. Laborde’s and Partington’s video deposition
testimony and, in the alternative, requested a hearing pursuant to Daubert v. Merrill
Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Square’s argument is that
neither doctor’s testimony was reliable to withstand a Daubert challenge.
Square challenged Dr. Laborde’s ability to testify on the issue of whether
Square’s lumbar disc injury was caused by the accident because he had not examined
Square, inspected either of the vehicles, or read the depositions of either Square or
LeBlanc.
Square also argues that Dr. Laborde’s testimony is unreliable because he relies
on a report from another expert that the defense hired but never introduced into
evidence. Dr. Martha Ketchum was a bio-mechanical/bio-medical engineer. She
prepared a report indicating the delta velocity of the Square vehicle. After reviewing
4 Dr. Laborde’s testimony, we find that his overall testimony was about the effects of
low-impact accidents and the fact that no back injuries were reported in rear-end
collision tests up to fourteen miles per hour. There was no reliance on a specific set
of calculations regarding the speed or delta velocities of the vehicles. The overall
effect of Dr. Laborde’s testimony was that no back injury results from low-impact
collisions.
In his video deposition testimony, Dr. Laborde testified about changes in
velocity and the effect on the body. He authored a paper entitled Biomechanics of
Minor Automobile Accidents: Treatment Implications for Associated Chronic Spine
Symptoms which was published in the JOURNAL OF THE SOUTHERN ORTHOPAEDIC
ASSOCIATION, Volume 9, Number 3, Fall 2000, at 187-92. The defense presented Dr.
Laborde’s testimony that in a study of about 3000 reported cases, no one has ever
reported any low back symptoms in a rear-end collision up to fourteen miles per hour.
He explained that the neck is the most likely area to be injured because there is less
support in the vehicle for the neck than the rest of the spine. Dr. Laborde testified
that neither Square’s MRI nor biomedical engineering standards indicate a lumbar
disc injury from the January 7, 2000 accident. The jury also heard evidence that Dr.
Laborde did not examine Square and that it is not impossible to have an injury at low
impact, although a low probability.
Square also sought to exclude the medical causation opinion of Dr. Partington
because who likewise never examined Square or talked to her treating physicians. Dr.
Partington also testified by video deposition and his observations were the same as
most doctors. He testified that there was no evidence of left-sided problems on the
February 8 MRI and the April 4 MRI indicated left-sided disc herniation which was
5 now compressing a nerve. He also agreed with Dr. de Araujo that the surgery in 2003
was not necessary because he could not identify an instability. The difference in Dr.
Partington’s opinion and that of the doctors offered by Square is his conclusion that
the indications on the two MRI’s are two separate and independent events rather than
a progression of the original herniation. He admitted that he does not examine the
patients.
A hearing on the motion in limine concerning the expert testimony was held
on December 9, 2003. Concerning Dr. Laborde’s testimony, the trial court denied the
motion finding that Dr. Laborde could give a “qualified conclusion, but not
unqualified. It’d have to be qualified based on the fact that he did not see the patient
or the vehicle.” Regarding Dr. Partington’s testimony, the trial court also denied the
motion stating, “It’s going to be the same thing as what my conclusion was on Dr.
Monroe Laborde. He cannot give an unqualified opinion about this accident cause
injury because he did not see this patient.”
The Supreme Court in Daubert, 113 S.Ct. 2786, examined the impact of the
adoption of Fed.R. Evid. 702 on the “general acceptance” test for determining the
admissibility of novel scientific evidence at trial established by Frye v. United States,
293 F. 1013 (1923). The court found that Frye was superceded by Article 702.
Louisiana Code of Evidence Article 702 follows the Federal Rule of Evidence Article
702.
Later, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct.
1167, 1176 (1999), the Supreme Court explained the purpose of Daubert as follows:
The objective of that [Daubert’s gatekeeping] requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of
6 intellectual rigor that characterizes the practice of an expert in the relevant field. Nor do we deny that, as stated in Daubert, the particular questions that it mentioned will often be appropriate for use in determining the reliability of challenged expert testimony. Rather, we conclude that the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable. That is to say, a trial court should consider the specific factors identified in Daubert where they are reasonable measures of the reliability of expert testimony.
In the present case, Square has not questioned the scientific basis or expertise
of Drs. Laborde’s and Partington’s opinions. She merely questions which
information the doctors utilized in coming to their conclusions. The testimony is no
different than their own expert Dr. Vidyadhar Akkaraju, a radiologist with a
subspecialty in neuroradiology, who never examined Square but testified that the
herniation he saw in the MRI from April 2000 was a progression from the herniation
seen in the February 2000 MRI.
The fact that the doctors neither examined Square nor the vehicles, or read the
parties’ depositions, or reviewed all the medical records goes to the weight and
credibility of each doctor’s testimony, not its admissibility, “and it is up to the
opposing party to examine the factual basis of the opinion in cross-examination.”
Rowe v. State Farm Mut. Auto. Ins., 95-669, p. 17 (La.App. 3 Cir. 3/6/96), 670 So.2d
718, 728, writ denied, 96-824 (La. 5/17/96), 673 So.2d 611 (citing Loudermill v. Dow
Chemical Co., 863 F.2d 566 (8th Cir.1988)). See also Ayres v. Beauregard Elec. Co-
op, Inc., 94-811 (La.App. 3 Cir. 9/6/95), 663 So.2d 127, writs denied, 95-2432, 95-
2434 (La. 12/15/95), 664 So.2d 455.
Square also argues that the testimony of Drs. Laborde and Partington were
cumulative with the testimony of Dr. Randall Lea, an orthopedic surgeon who
examined Square on August 29, 2002. Each of these expert witnesses offered by the
7 defense had different qualifications and could offer a little more insight into the case
from their perspective.
For these reasons we find that the trial court was not required to conduct a
Daubert hearing in the case. We also find that the trial court properly admitted the
testimony of Drs. Laborde and Partington.
EXCESSIVE AND HARASSING OBJECTIONS
Square claims that the numerous objections lodge by defense counsel during
the course of the eight-day trial violated the parameters of La.Code Civ.P. art. 371
which provides, in pertinent part:
An attorney at law is an officer of the court. He shall conduct himself at all times with decorum, and in a manner consistent with the dignity and authority of the court and the role which he himself should play in the administration of justice.
He shall treat the court, its officers, jurors, witnesses, opposing party, and opposing counsel with due respect; shall not interrupt opposing counsel, or otherwise interfere with or impede the orderly dispatch of judicial business by the court; shall not knowingly encourage or produce false evidence; and shall not knowingly make any misrepresentation, or otherwise impose upon or deceive the court.
Square contends that the trial court’s failure to control defense counsel’s
conduct was an abuse of its discretion to conduct orderly proceedings pursuant to
La.Code Civ.P. art. 1631.
Reviewing the record, we observe that counsel for Square also made numerous
objections during the course of trial, in addition to several requests for mistrials and
sidebars. Both sides had objections that were sustained, and both sides had
objections that were overruled. Our review of the proceedings does not indicate that
one side over the other was prejudiced by opposing counsel’s conduct. We find no
merit to this argument.
8 REDIRECT EXAMINATION
In brief Square states that the trial court prevented her from conducting redirect
examination of several witnesses by granting the defense’s objections to the alleged
repetitive nature of the redirect questions posed by her counsel. Square contends this
was an abuse of the trial court’s discretion.
Louisiana Code of Evidence Article 611(D) provides for the redirect
examination of a witness as follows:
Scope of redirect examination; recross examination. A witness who has been cross-examined is subject to redirect examination as to matters covered on cross-examination and, in the discretion of the court, as to other matters in the case. When the court has allowed a party to bring out new matter on redirect, the other parties shall be provided an opportunity to recross on such matters.
Furthermore, Comment (k) to Article 611, citing well-established
jurisprudence, provides that the trial court has considerable discretion to allow or
disallow the parties to conduct redirect examination. Also see Brown v. Catalyst
Recovery of Louisiana, Inc., 01-1370 (La.App. 3 Cir. 4/3/02), 813 So.2d 1156.
Many of the redirect questions posed by Square’s counsel were repetitive of the
direct questions and not true redirect examination. We also observed that several
times the questions posed by Square’s counsel concerned matters that were not
matters that had been covered in cross-examination. Our review of the testimony
reveals that Square’s counsel was able to conduct a thorough direct and redirect
examination of the witnesses. We find no merit to this argument.
JURY INSTRUCTIONS
Square contends that jury charges on low-speed collisions and legal
presumptions prejudiced, misled, or confused the jury. She asks that we reverse the
jury’s decision based on these jury instructions.
9 The trial court must give jury instructions that properly reflect the law applicable to the facts of the particular case. Brown v. Diamond Shamrock, Inc., 95-1172 (La.App. 3 Cir. 3/20/96); 671 So.2d 1049. To fulfill this duty, the trial court must both insure that the jury considers the correct law and, in giving the instructions, avoid confusing the jury. Id.
Mathews v. Dousay, 96-858, p. 8 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 509.
In further elaborating on the duty of the courts in evaluating jury instructions,
this court in Mathews, 689 So.2d at 509-10 quoted from Iorio v. Grossie, 94-846, pp.
2-3 (La.App. 3 Cir. 10/4/95), 663 So.2d 366, 368-69(citations omitted)(alteration in
original):
A trial court should give all requested instructions that correctly state the law, provided that they are material and relevant to the litigation. Courts are not obligated to give the specific jury instructions submitted by the parties, but omission of a requested instruction containing an essential legal principal [sic] may constitute reversible error. A court has fulfilled its duty if its instructions fairly and reasonably point out the issues presented by the pleadings and evidence and provide the principles of law necessary to resolve those issues.
An appellate court must exercise great restraint before overturning a jury verdict on the basis of erroneous instructions. Consequently, we will overturn the jury’s verdict in the case sub judice on the basis of such an error only if the instructions, taken as a whole, were so incorrect or inadequate as to preclude the jury from reaching a verdict based on the relevant law and facts. Ultimately, the pertinent inquiry is whether the jury was misled to such an extent as to be prevented from doing justice.
Square contends that trial court’s jury charge on low speed collisions was
incomplete. The trial court charged the jury that, “While the force of a collision may
be considered in determining whether a person was injured in an accident and the
extent of any injuries sustained, it should not be the only fact to consider when
making such a determination.”
10 Square also complains about the trial court’s jury charge regarding
“presumption” wherein the trial court charged the jury that (emphasis supplied):
Plaintiff is aided in proving the causal relationship between the accident and her injuries by the legal presumption that a claimant’s injury is presumed to have resulted from the accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the injury appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable probability of causal connection between the accident and the injury.
Square’s concern with this particular jury instruction was that the words
“commencing with the accident” was used as opposed to “shortly after the accident.”
Square recognizes that the distinction is subtle, but claims that the jury could have
believed that she was not entitled to a presumption of causation unless her low back
injuries commenced on the date of the accident.
We find that these instructions given by the trial court adequately reflect the
law and conveyed the issues to the jury without misleading it. See Housely v. Cerise,
579 So.2d 973 (La.1991) and Brown v. Trinity Universal Ins. Co., 01-1405 (La.App.
3 Cir. 4/3/02), 814 So.2d 747, writ denied, 02-1689 (La. 10/14/02), 827 So.2d 422.
Therefore, we find no merit to this argument.
DAMAGES
Square claims that the awards by the jury for general damages, medical
expenses, and lost wages are unsupported by the evidence presented at trial. As
previously stated, the jury awarded $10,000 in general damages, $7,000 for past
medical expenses, and $2,000 for lost wages. Square argues that she suffered an
injury to the L5-S1 disc in her lower back which ultimately required two surgeries
necessitating an increase in these awards.
11 Square has initially argued the previous legal errors as discussed required a de
novo review. Finding no merit to these arguments we now review the award of
general damages pursuant to the abuse of discretion standard and the awards of
special damages pursuant to the manifest error standard, examining the facts or
circumstances of the case under the circumstances to determine the adequacy or
inadequacy of the award. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883
So.2d 1128, writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31.
“A tortfeasor is only liable for damages caused by his negligence, not from
separate, independent, or intervening causes of damage, and it is the plaintiff who has
the burden of proving that his injuries are in fact attributable to defendants.” Doucet
v. Doug Ashy Bldg. Materials, Inc., 95-1159, p.5 (La.App. 3 Cir. 4/3/96), 671 So.2d
1148, 1152.
The jury found that Square was injured in this accident. However, the amount
of damages awarded by the jury are a further indication that, although the jury felt
Square was injured in this accident, any resulting surgeries, loss of wages, and future
damages were the result of lifting her child and not related to this accident. We
cannot say the jury abused its discretion or committed manifest error in its award of
damages for this accident. After reviewing the facts and medical evidence in this case
we find no error in the jury’s finding that the left-sided herniation indicated on the
April 4, 2000 MRI was not a result of this accident. It has not been disputed that
Square picked up her forty-five pound child in early April and experienced
excruciating pain. There was a definite change between the MRI after the accident
and the MRI following the child-lifting incident. Therefore, we find no abuse of
12 discretion in the jury’s award of general damages nor manifest error in the jury’s
award of special damages.
For the reasons set forth in this opinion, the judgment of the trial court is
affirmed. Costs of this appeal are assessed to Janis Square.