John W. Tew, II v. United Services Automobile Association, Timothy Andries and GEICO General Insurance Company

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, FIRST CIRCUIT

JOHN W. TEW, II NO. 2021 CW 1058

VERSUS PAGE 1 of 2

UNITED SERVICES AUTOMOBILE ASSOCIATION, TIMOTHY ANDRIES AND GEICO GENERAL INSURANCE COMPANY

CONSOLIDATED WITH

JOHN W. TEW, II

VERSUS

GOAUTO INSURANCE COMPANY AND SEPTEMBER 23, 2021 EARL V. HUTTON

In Re: United Services Automobile Association, applying for

supervisory writs, 19th Judicial District Court,

Parish of East Baton Rouge, No. 656812 c/ w 657425.

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

WRIT GRANTED IN PART; WRIT DENIED IN PART. We find that the trial court abused its discretion by granting a motion in limine to exclude evidence of plaintiff' s other injuries - including torn biceps, mallet finger, and carpal tunnel syndrome. We find the probative value of such evidence as to the claims for general damages and loss of earning capacity outweighs the danger of unfair prejudice. While we may agree

with Judge Guidry' s analysis, we decline to exercise our

supervisory jurisdiction as to all other issues as the criteria set forth in Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 ( La. 1981) ( per curiara) are

not met. However, the granting of a" partial, partial" summary judgment on the issue of medical causation of the plaintiff' s

herniation at the C5- 6 level may lead to jury confusion and

perhaps unintended consequences since the issue of medical

causation of the plaintiff' s other injuries, future medical

treatment, and general and special damages may necessarily have to be decided by the jury in a bifurcated manner.

GH WRC

Guidry, J., dissents in part and concurs in part. I would

reverse the trial court' s ruling granting partial summary judgment on medical causation of plaintiff' s C5- 6 herniation. Most, if not all, of the physicians testified that their causation opinions were based on the subjective complaints and

history provided by plaintiff. The physicians' causation

opinions are only as reliable as the patient history on which it was based. The medical opinions, therefore, are tied to the

credibility of plaintiff. Causation is an issue of fact that is generally decided at the trial on the merits. Estate of Adams v. Home Health Care of La., 2000- 2494 ( La. 12/ 15/ 00), 775 So. 2d 1064. Because the medical opinions rely on the truthfulness of STATE OF LOUISIANA

No. 2021 CW 1058 PAGE 2 of 2

plaintiff' s subjective complaints and history, a causation

determination necessarily invokes a credibility assessment,

which is not appropriate on summary judgment. A trial court

cannot make cred-ibility decisions on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5747, 2003- 1533 ( La. 2/ 20/ 04), 866 So. 2d 228, 234; Monterrey Center, LLC v. Education Partners, Inc., 2008- 0734 ( La. App. 1st Cir. 12/ 23/ 08), 5 So. 3d 225. For the foregoing reasons, I dissent. In all other respects, I concu-r with the majority.

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DEPUTY CLERK OF COURT FOR THE COURT