KEYON YOUNGBLOOD AND * NO. 2022-CA-0202 JOSHUA YOUNGBLOOD * VERSUS COURT OF APPEAL * DEONE HAMPTON, FOURTH CIRCUIT REINHART * TRANSPORTATION, LLC, STATE OF LOUISIANA AND ACE AMERICAN ******* INSURANCE COMPANY
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-03416, DIVISION “F-14” Honorable Jennifer M. Medley ****** Judge Rosemary Ledet ****** (Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Pro Tempore James F. McKay, III)
Vanessa Motta MOTTA LAW LLC 3632 Canal Street New Orleans, LA 70119
COUNSEL FOR PLAINTIFF/APPELLANT
D. Russell Holwadel Phillip Joseph Rew ADAMS HOEFER HOLWADEL & EDLRIDGE, L.L.C. 400 Poydras Street Suite 2450 New Orleans, LA 70130
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED DECEMBER 9, 2022 RML PAB JFM
This is a personal injury case. Plaintiffs, Keyon Youngblood (“Keyon”) and
Joshua Youngblood (“Joshua”), appeal the trial court’s judgments dismissing their
claims with prejudice, following the return of jury verdicts in favor of Defendant,
Deone Hampton. For the reasons that follow, we affirm the trial court’s
judgments.
FACTUAL AND PROCEDURAL BACKGROUND
Keyon Youngblood was in an automobile accident with Mr. Hampton on the
edge of the French Quarter while Mr. Hampton was in the course and scope of his
employment as a truck driver for Reinhart Food Services, LLC (“Reinhart”).
Keyon and his brother, Joshua (collectively, “Plaintiffs”), sued Mr. Hampton,
Reinhart Transportation Company, LLC1, and Reinhart’s insurer, Ace American
Insurance Company (collectively, “Defendants”) for damages. Plaintiffs claim
they were both in Keyon’s vehicle at the time of the accident and sustained neck
1 Reinhardt Transportation Company, LLC, is a distinct entity from Reinhardt Food Services,
LLC, Mr. Hampton’s employer. Plaintiffs did not add Reinhardt Food Services, LLC, as a defendant and only Mr. Hampton appeared on the verdict form at trial.
1 and back injuries. Defendants answered the suit, denying liability and denying that
Joshua was in the vehicle at the time of the accident.
The case proceeded to a four-day jury trial. Witness testimony and
documentary evidence established that the accident occurred while the vehicles
were travelling westbound on Rampart Street just past Canal Street at
approximately 6:39 a.m. Mr. Hampton was in a large box truck attempting to turn
right onto Iberville Street while Keyon passed him on the right in his pickup truck.
The two vehicles made contact, causing Mr. Youngblood’s tire to blow out and
other alleged, unspecified damage to his pickup truck. After the accident, Keyon
and Mr. Hampton each called 911 and requested an ambulance for Keyon. The
remaining facts of the accident were disputed,2 as was the necessity of Plaintiffs’
medical treatment and Joshua’s presence in Keyon’s vehicle at the time of the
accident.
Plaintiffs testified that, before the accident, Joshua called Keyon to ask
Keyon to pick him up at the end of his shift as a street sweeper with Empire
Services. According to Plaintiffs, the accident occurred after Keyon picked up
Joshua while Joshua was in Keyon’s truck. But, Mr. Hampton testified that Keyon
was alone in his truck during the accident; and, Joshua arrived at the scene later in
a brown Buick with a female companion.
In support of their version of events, Defendants introduced bodycam
footage from a responding police officer that showed Joshua attempting to replace
2 The jury found both Keyon Youngblood and Mr. Hampton were equally at fault in causing the
accident. Plaintiffs have not appealed this finding.
2 Keyon’s flat tire more than an hour after the accident. Nearby was a brown Buick,
and an unidentified woman stood near Joshua watching him attempt to change the
truck’s tire. Defendants also called Ricardo Leal, a T-Mobile employee, tendered
and accepted by the trial court as an expert in historical cell site records, who
reviewed T-Mobile records for calls between Keyon and Joshua and testified that
at 6:41 a.m., 6:45 a.m., 6:53 a.m., and 7:03 a.m. Joshua’s cellphone received
incoming calls from Keyon’s cellphone. From T-Mobile’s data, Mr. Leal
determined that the initial incoming calls to Joshua were routed through a
cellphone antenna located on Behrman Highway in Terrytown, Louisiana, several
miles from the accident scene, suggesting that his cellphone was somewhere near
the Behrman Highway cellphone antenna. Lastly, in defense of Joshua’s claims,
Defendants called a representative of Empire Services—the company Joshua
claimed to have worked for on the morning of the accident—who testified that
Joshua had been terminated three months before the accident. Defendants
introduced personnel documents from Empire Services corroborating Joshua’s
termination date.
Plaintiffs received treatment for their alleged injuries from several medical
providers, including a chiropractor, a neurosurgeon, and an interventional pain
medicine doctor, each of whom testified at trial. Each medical provider opined
that Plaintiffs’ injuries were caused by the accident, necessitating the provided
treatment. But, each medical provider admitted on cross-examination that they
were unaware of Plaintiffs’ history of motor vehicle accidents, their earlier claims
3 of injuries similar to those claimed in the instant action, and their earlier medical
treatment for similar injuries. Defendants also introduced documents obtained
from local scrapyards that indicated Keyon unloaded and sold thousands of pounds
of scrap metal in the weeks after the accident and video footage showing Keyon
unloading heavy scrap metal and old appliances from his pickup truck.3
At the conclusion of the trial, the jury returned a unanimous verdict finding
that Joshua was not in Keyon’s truck during the accident. The jury further found
that Mr. Hampton and Keyon were equally at fault for the accident but found that
the accident was not the proximate cause of Keyon’s alleged injuries.
DISCUSSION
Keyon and Joshua Youngblood assign twelve errors to the trial court.4 We
address each below, but address assignment of error number ten out of sequence.
I. Ex Parte Communication between the Judicial Law Clerk and the Jury
Plaintiffs contend that the trial court erred in permitting a judicial law clerk
to engage in ex parte communication with the jury during its deliberations. The
jury was provided with separate verdict forms for Keyon and Joshua containing
jury interrogatories agreed upon by both parties. After retiring for deliberations,
the jury returned the verdict forms for both Keyon and Joshua. The trial judge
found an unspecified error in the jury’s verdict form for Keyon and instructed the
jury to again retire to the jury room to complete the jury interrogatories for Keyon.
3 Keyon Youngblood testified that before the accident he made money by selling scrap metal and
other old and broken appliances and metal objects to local scrapyards. 4 The Youngblood’s twelfth assignment of error seeks review of the trial court’s judgment taxing
them with all costs. Because this judgment is not in the appellate record, we do not address it.
4 The trial judge instructed her law clerk to lead the jury into the jury room. Later,
the law clerk returned to the courtroom and informed the trial judge and counsel
for both parties that the jury had questions about completing the Keyon’s verdict
form. Specifically, the law clerk stated the following:
Law Clerk:
So the first question by the jurors was they wanted to know if they still had to fill in Question No. 5 regarding the percentages to Deone Hampton and the percentages of Keyon Youngblood because of their responses to some of the other questions.
….
And then they also had questions regarding what the allocation of the percentages meant for the case. Like what it meant for the defendant and what it meant for the plaintiff in allocating percentages. And then they wanted to know if the 9 out of 12 people were still needed to come up with the percentages on Question No. 5.
Mr. Holwadel [Defense Counsel]:
Yeah, I want everything.
The Court:
Yes --
Yes. I told them every --
Mr. Holwadel:
Okay. Thank you.
9 out of 12 people had to agree for all the questions that were asked.
Yeah.
5 Mr. Sutton [Plaintiffs’ Counsel]:
So we might be here a while then. …
When I told them just 9 out of 12 people had to agree on the percentages and stuff, that seemed to ease them a little bit. Because for some reason, they thought that it – like all of them had to be in agreement for the percentages of fault, and then they just kind of misunderstood what everything meant.
When the jury returned to the courtroom with a completed verdict form for
Keyon, the law clerk read both verdict forms aloud. The jury found unanimously
that Joshua was not a passenger in Keyon’s pickup truck at the time of the
accident, awarding him nothing. As to Keyon, the jury found that Mr. Hampton
was negligent in causing the accident but in the next interrogatory found that Mr.
Hampton’s negligence was not a proximate cause of any damages claimed by
Keyon. Because the jury answered this interrogatory in the negative—finding
Keyon failed to prove an essential element of his claim—the verdict form
instructed the jury to sign the form and return it to the courtroom. However, the
jury continued to answer some, but not all, of the remaining jury interrogatories,
finding that Keyon was also negligent in causing the accident, assigning fifty
percent fault to both drivers, and awarding Keyon no damages.
Plaintiffs argue the law clerk’s admission—that she told the jury they had to
agree to each jury interrogatory answer by a nine-person majority —constitutes
reversible error. Further, Plaintiffs point to a statement from the law clerk during
her recitation of Keyon’s verdict form as evidence that the law clerk gave
additional ex parte instructions to the jury that were not disclosed to the trial court
and the parties. Specifically, the jury did not answer jury interrogatory number 4,
6 which asked whether the jury found that Keyon’s negligence was a proximate
cause of any damages claimed by him. After reading interrogatory number 4, the
law clerk stated, “the answers are left blank as instructed.” (emphasis added).
Plaintiffs claim that, because the jury interrogatory form did not instruct the jury to
leave interrogatory number 4 blank, only the law clerk could have instructed the
jury to leave it blank. Moreover, Plaintiffs speculate that the law clerk could have
given the jury any number of additional ex parte instructions while outside the
courtroom.
Plaintiffs’ arguments regarding the law clerk’s alleged ex parte
communications are raised for the first time on appeal. Plaintiffs failed to object at
trial, failed to question the trial court or law clerk regarding the ex parte
communications, and failed to raise the issue in their motion for new trial.
Defendants argue that Plaintiffs have waived their right to appeal this issue. We
agree.
“The right to attack on appeal an allegedly improper instruction given after
that case has been submitted to the jury must be preserved by an objection made at
the time the supplemental instruction is given.” West v. Nat’l R.R. Passenger
Corp., 03-1707, pp. 4-5 (La. App. 4 Cir. 6/23/04), 879 So.2d 327, 331 (citing
Berrera v. Hyundai Motor America Corp., 92-2108, (La. App. 4 Cir. 1993), 620
So.2d 890, 893). In West, this court stated:
The policy considerations underlying these rules are obvious. As the court stated in Renz,5 ‘Counsel may not permit or acquiesce in an easily corrected procedural error and then, after an adverse verdict, urge such error for the first time as a ground for setting aside a jury verdict reached by the expensive and cumbersome method of a jury trial.’
5 Renz v. Texas & Pacific Railway Co., 138 So.2d 114 (La. App. 3d Cir. 1962).
7 Id.
Despite their failure to object to the law clerk’s ex parte communication,
Plaintiffs urge this court to follow Lawson v. Straus, 98-2096 (La. App. 4 Cir.
12/8/99), 750 So.2d 234, and Delo Reyes v. Liberty Mut. Fire Ins. Co., 08-0769
(La. App. 4 Cir. 2/18/09), 9 So.3d 890, and reverse the trial court’s judgment
regardless of their acquiescence. In both Lawson and Delo Reyes, this court found
that a trial judge’s conduct so impaired the administration of impartial justice that
reversal was necessary in the interest of justice, despite the absence of a
contemporaneous objection. 98-2096, pp. 6-7 750 So.2d at 239; 08-0729, p. 5, 9
So.3d at 893. The Lawson trial judge repeatedly entered the jury room outside of
the presence of plaintiff’s counsel, answered multiple questions from jurors, and
indicated to the jury that he would declare a mistrial if they did not reach a verdict.
98-2096, p. 3, 750 So.2d at 237.6 In Delo Reyes, the trial judge entered the jury
room on multiple occasions during deliberations without notice to the parties and
explained legal issues to the jury, including negligence standards and burdens of
proof. 08-0729, p. 2, 9 So.3d at 891.
Unlike the ex parte communications at issue in Lawson and Delo Reyes, we
do not find that the law clerk’s statement to the jury in this case warrants
consideration given that no objection was lodged in the trial court. Contrary to
Plaintiffs’ claims, the record reflects only one ex parte statement to the jury—
confirming the written jury instruction, agreed upon by both parties, that the jury
must reach a nine-person majority for each interrogatory on the verdict form.
6 Moreover, the Lawson court found that the trial court’s failure to notify the plaintiffs’ counsel
of its plan to speak with the jury prevented the plaintiffs from objecting contemporaneously. Id. 98-2096, p. 7, 750 So.2d at 239.
8 While ex parte communication concerning any point of law between judicial staff
and the jury should be avoided, we do not find that the law clerk’s statement
reiterating a written jury instruction, impaired the administration of impartial
justice.
Moreover, we find Plaintiffs’ speculation that the law clerk gave the jury
additional ex parte instructions—based on the law clerk’s statement that Keyon’s
jury interrogatory number four was left blank “as instructed”—baseless. The
verdict form for Keyon explicitly instructed the jurors that, if they found Mr.
Hampton’s negligence was not a proximate cause of any damages claimed by
Keyon, they were to sign the form and return it to the courtroom, leaving the
remaining interrogatories blank. Having found no proximate cause between Mr.
Hampton’s negligence and Keyon’s claimed damages, the law clerk’s statement
that the jury left interrogatory number four blank, as instructed, was accurate.
Accordingly, Plaintiffs’ first assignment of error is unpersuasive.
II. Evidentiary Rulings
Plaintiffs next assign error to various evidentiary rulings made before and
during trial. We address the standard of review and legal principles applicable to
all of these issues before addressing each assignment of evidentiary error.
“A trial court is afforded great discretion concerning the admission of
evidence at trial, and its decision to admit or exclude evidence may not be reversed
on appeal in the absence of an abuse of that discretion.” Alfred Conhagen, Inc. of
Louisiana v. Ruhrpumpen, Inc., 21-0396, p. 5 (La. App. 4 Cir. 4/13/22), 338 So.3d
55, 62 (internal citation omitted). The abuse of discretion standard is highly
deferential to the trial court unless the court exercised its discretion based upon an
erroneous view of the law or a clearly erroneous view of the facts. Tran v. Collins,
9 20-0246, p. 5 (La. App. 4 Cir. 8/20/21), 326 So.3d 1274, 1279 (citing Show & Tell
of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 14-0843, p. 2
(La. App. 4 Cir. 12/17/14), 156 So.3d 1234, 1237). If an appellate court finds the
trial court erred in its decision to admit or exclude evidence, the appellate court
must evaluate whether the errors, cumulatively, are prejudicial to the extent they
constitute reversible error. Lovecchio v. Romain, 19-0779, p. 11(La. App. 4 Cir.
3/25/20), 2020 WL 1465943, *5.
In their second assignment of error, Plaintiffs argue that the trial court erred
in excluding documents from the Louisiana Department of Public Safety which
they contend were to impeach Mr. Hampton’s testimony concerning the status of
his commercial driver’s license at the time of the accident. Defendants objected to
introduction of this evidence on the basis that Plaintiffs had not disclosed it before
attempting to introduce it at trial. The trial court agreed, reasoning that the pretrial
order required that all exhibits, including impeachment evidence, be exchanged
before trial.7 Moreover, before trial, the trial court granted Plaintiffs’ own motion
in limine requesting the exclusion of all evidence—including impeachment
exhibits—not disclosed before trial.8 Defendants argue that it would be patently
unjust to impose this rule against Defendants and not Plaintiffs. We agree.
Plaintiffs cite Tew v. USAA, 21-1166 (La. App. 1 Cir. 9/29/21), 2021 WL
4458840 (unpub.), in support of their argument. We do not find Tew persuasive.
The finding in Tew, that impeachment evidence is exempt from pretrial disclosure
7 The trial court also expressed doubt that the status of Mr. Hampton’s commercial driver’s
license was relevant to his liability for the accident. 8 In their motion, Plaintiffs argued, “Defendants should be prohibited from any reference, verbal
or documentary, to any witnesses, testimony or documents when the identity or reports of such witnesses or documents were not specifically (not generically) disclosed in the discovery process.”
10 was based on the Nineteenth Judicial District Court’s Rules of Court, which
exempt impeachment evidence from disclosure prior to trial. Id. No such rule
exists in Orleans Civil District Court. Moreover, Plaintiffs obtained the documents
at issue before trial and, in light of Mr. Hampton’s deposition testimony, knew the
documents were likely to be introduced at trial. Given their advanced knowledge
of these documents and their own motion in limine, Plaintiffs’ failure to disclose
the documents in advance of trial violated both the spirit and the letter of the
pretrial order. See Gallow v. Jack Eckerd Corp., 630 So.2d 970, 972 (La. App. 3d
Cir. 1994) (affirming exclusion of undisclosed impeachment evidence in violation
of pretrial order). Accordingly, we find no abuse of discretion in the trial court’s
exclusion of the Louisiana Department of Public Safety records from evidence at
trial.
In their third assignment of error, Plaintiffs argue the trial court erred in
preventing them from impeaching Mr. Hampton with the audio recording of his
911 call. Plaintiffs allege this recording would impeach Mr. Hampton’s trial
testimony that he looked into Keyon’s truck—where Joshua claimed to be sitting—
and saw no one there. But, the audio recording was not introduced into evidence
or proffered in the trial court, leaving this court with nothing to review. Melerine
v. O'Connor, 13-1073, p. 8 (La. App. 4 Cir. 2/26/14), 135 So.3d 1198, 1205
(observing, “[a] court of appeal is a court of record, which must limit its review to
evidence in the record before it. An appellate court cannot review evidence that is
not in the record on appeal and cannot receive new evidence.” (citing La. C.C.P.
art. 2164; Board of Directors of Industrial Development Bd. of City of New
Orleans v. All Taxpayers, Property Owners, Citizens of New Orleans, 03-0826, p.
4 (La. App. 4 Cir. 5/29/03), 848 So.2d 740, 744)).
11 Plaintiffs also contend that the trial court erred in preventing them from
impeaching Mr. Hampton with his own answer to Plaintiffs’ petition for damages,
in which he asserted in an affirmative defense that the negligence of Keyon and/or
Joshua contributed to the alleged accident and injuries. But, the record contains no
ruling from the trial court on this matter. Finding nothing in the record to review
in regard to this assignment of error, we find no error by the trial court.
In their fourth assignment of error, Plaintiffs argue the trial court erred in
permitting Defendants to present evidence that Joshua was not in Keyon’s vehicle
at the time of the accident. Likewise, Plaintiffs claim the trial court erred in
permitting a jury interrogatory questioning whether the jury found that Joshua was
in the vehicle during the accident. Plaintiffs contend that Defendants failed to
affirmatively plead fraud in their answer; thus, they claim the trial court erred in
permitting the evidence of Joshua’s presence elsewhere and the jury interrogatory
concerning Joshua’s presence in Keyon’s vehicle at the time of the accident.
The record demonstrates that Defendants denied Joshua Youngblood’s
involvement in the accident from the outset—including in their initial answer—
through the end of trial. This defense sought to disprove essential elements of
Joshua’s claim and neither raised a new matter nor raised a defense which assumed
his claim to be true. Thus, it was not an affirmative defense; rather, it was a
negative defense that need not be affirmatively pleaded. See Keller v. Amedeo,
512 So.2d 385, 388 (La. 1987). Accordingly, we find Plaintiffs’ fourth assignment
of error unpersuasive.
In their fifth assignment of error, Plaintiffs argue that the trial court erred in
denying their motion for spoliation of evidence regarding allegedly missing
dashcam footage from the truck driven by Mr. Hampton and an allegedly missing
12 report of corrective training, automatically generated by the dashcam software
(“coaching sessions”). Plaintiffs contend that the original dashcam footage from
the truck and the coaching session was intentionally destroyed or concealed by
Defendants because the video and report recorded the actual time of the accident,
which they claim on appeal was much later than the 6:39 a.m. accident time
claimed by Defendants, based on the driver’s log in Mr. Hampton’s truck.
According to Plaintiffs, Mr. Hampton and Reinhardt’s representative Ken
Cosby lied about the time of the accident to make it appear that the four calls from
Keyon to Joshua at 6:41 a.m., 6:45 a.m., 6:53 a.m., and 7:03 a.m. were made
within minutes of the accident to fit within the Defendants’ theory that Joshua was
not involved in the accident and arrived later after Keyon notified him of the
accident. Plaintiffs, however, submitted no evidence to demonstrate that
Defendants intentionally destroyed the allegedly missing footage or coaching
session. See Roussell v. Circle K Store, Inc., 21-0582, p. 4 (La. App. 1 Cir.
12/22/21), 340 So.3d 52, 56 (observing that spoliation requires “an intentional
destruction of evidence for the purpose of depriving the opposing parties of its use
in pending or anticipated litigation.”).
Moreover, in sworn trial testimony, Joshua conceded that the accident
happened at or very near the time claimed by Defendants. On redirect
examination, Joshua claimed that he did in fact receive the four calls from Keyon
in the twenty-five minutes after the accident, but he claimed both he and Keyon
were at the accident scene when the calls were received. Keyon, Joshua explained,
was outside of the pickup truck calling Joshua, who was inside the pickup truck, to
tell him to remain in the truck. He alleged these calls were made despite Plaintiffs
being within speaking distance of each other. Further, Plaintiffs’ own proffered
13 exhibits one and two—written reports of 911 calls by Keyon and Mr. Hampton—
indicate that both men called 911 to report the accident at 6:50, within ten minutes
of the Defendants’ reported accident time. Accordingly, we find no error in the
trial court’s ruling denying Plaintiffs’ motion for spoliation.
In their sixth assignment of error, Plaintiffs argue the trial court erred in
permitting Ricardo Leal to offer expert testimony on the location of Keyon’s and
Joshua’s cellphones when calls were made between them.
“[T]he trial court is afforded wide discretion in determining whether expert
testimony should be admitted and who should or should not be qualified as an
expert. A trial court's decision to qualify an expert will not be overturned absent
an abuse of discretion.” Boudreaux v. Bollinger Shipyard, 15-1345, p. 15 (La.
App. 4 Cir. 6/22/16), 197 So.3d 761, 770–71 (internal citations omitted). In
opposition to Plaintiffs’ motion to exclude or limit the testimony of Mr. Leal,
Defendants attached Mr. Leal’s resume and an affidavit, in which he attested to
testifying in more than 350 trials. In 20-25% of those trials, he interpreted cell
phone records to determine the location and movement of cellphones relative to
towers used to make or receive calls. He has been accepted as an expert in courts in
California, Michigan, and Maryland. See, e.g., People v. Martin, B239366, 2014
WL 3736212, at *11 (Cal. Ct. App. July 30, 2014) (unpub.). Moreover, at trial, he
testified that he had more than eighteen years of experience analyzing historical
cell site records. Considering Mr. Leal’s experience and expert testimony history,
we cannot say the trial court abused its discretion in permitting him to testify on
the location of Plaintiffs’ cellphones.
In their seventh assignment of error, Plaintiffs argue the trial court erred in
permitting Reinhart’s corporate representative, Ken Cosby, to testify because Mr.
14 Cosby did not appear on either parties’ witness list. “A trial judge has great
discretion in conducting a trial, which discretion includes the admissibility of
witness testimony.” Tassin v. State Farm Mut. Auto. Ins. Co., 20-00652, p. 2 (La.
10/14/20), 302 So.3d 1098, 1099. In this instance, the trial court reasoned, despite
Defendants’ failure to list Mr. Cosby on their witness list, Plaintiffs were aware of
Mr. Cosby for more than two years before trial and had taken Mr. Cosby’s
deposition before trial. Finding no prejudice to Plaintiffs, the trial court admitted
Mr. Cosby’s testimony. Considering the absence of any prejudice, we find no
error in permitting Ken Cosby to testify at trial.
In their eighth assignment of error, Plaintiffs argue the trial court erred in
allowing Defendants to introduce surveillance videos of Keyon unloading scrap
from his truck. The videos, obtained from surveillance footage at New Orleans
scrapyards, depict Keyon pushing and lifting heavy objects from his truck bed,
including heavy appliances, such as a stove, a washer and dryer, a water heater,
and a refrigerator. Plaintiffs contend that the videos, taken between December 12,
2018 and March 25, 2019, were irrelevant and should have been excluded at trial,
because they were recorded after Keyon underwent surgery.
“Surveillance videotape ostensibly picturing a personal injury plaintiff
engaged in physical activity is highly relevant to the plaintiff's claim for damages
as the result of physical injury. Such surveillance videotape could be used as
substantive, corroborative, or impeachment evidence at trial.” Wolford v. JoEllen
Smith Psychiatric Hosp., 96-2460, p. 2 (La. 5/20/97), 693 So.2d 1164, 1166.
Keyon claimed severe and ongoing pain at trial. He likewise claimed his ability to
work as a scrapper was impaired, because he could not lift heavy objects or unload
15 anything from his truck by himself and required a paid helper.9 Keyon also
claimed the accident totaled his truck, requiring him to get a new truck. The video
evidence at issue undermined Keyon’s testimony on all three points, depicting him
lifting heavy objects, despite his claims of severe pain; driving the same truck he
claimed was totaled during the accident; and selling scrap without a paid helper.
Moreover, Defendants disclosed the video surveillance sufficiently in advance of
trial to prevent any undue prejudice to Plaintiffs. Accordingly, we find no error in
the trial court’s judgment permitting the surveillance videos to be shown at trial.
In their ninth assignment of error, Plaintiffs argue the trial court erred in
preventing them from introducing evidence that Reinhardt failed to perform a
preventability assessment10 after the accident and failed to submit Mr. Hampton to
drug and alcohol testing within two hours of the accident. Plaintiffs do not explain
how Reinhardt’s failure to perform a preventability assessment after the accident is
relevant. Plaintiffs did not assert any independent negligent claims against
Reinhardt, and Reinhardt’s failure to perform a preventability assessment after the
accident has no bearing on Mr. Hampton’s credibility or his fault in causing the
accident. Moreover, given the jury’s finding that Mr. Hampton was at fault,
Plaintiffs have failed to demonstrate any prejudice by the trial court’s exclusion of
Reinhardt’s failure to perform a preventability assessment. Plaintiffs likewise fail
to explain the relevance of Reinhardt’s late drug and alcohol testing of Mr.
Hampton. The record is devoid of any evidence or allegation suggesting Mr.
9 Keyon never identified his helper by anything more than a first name—Jake—despite requests
for his full name, his location, or contact information. 10 A preventability assessment is a determination of corrective action that could be taken to
prevent the reoccurrence of an accident.
16 Hampton was impaired at the time of the accident. Accordingly, we find this
assignment of error unpersuasive.
In their eleventh assignment of error, Plaintiffs contend the trial court erred
in denying their motion to compel service of a trial subpoena on Rico Papillion, the
passenger in Mr. Hampton’s truck, through defense counsel. Mr. Papillion is not a
party to this case and resides beyond the trial court’s subpoena power. Mr.
Papillion retained Defendants’ attorneys to obtain from Plaintiffs an alleged
recorded statement of him. Pursuant to La. C.C.P. art. 1424 (B)11, defense counsel
appeared on behalf of Mr. Papillion and moved the trial court to order Plaintiffs to
produce the statement to Mr. Papillion. The parties dispute whether defense
counsel’s representation of Mr. Papillion to obtain his recorded statement
constituted a general appearance subjecting him to the jurisdiction of the trial
court.
We, however, need not decide this issue, as Plaintiffs have failed to make
any showing of prejudice from the trial court’s denial of their motion to compel.
Plaintiffs have not stated how Mr. Papillion’s testimony could have altered the
outcome of the trial. To the contrary, Plaintiffs’ counsel represented in earlier
pleadings that she “felt satisfied that Mr. Papillion did not know anything sufficient
to add to the liability or facts in this case.” Further, when Defendants moved to
take Mr. Papillion’s deposition for the perpetuation of his testimony at trial,
Plaintiffs opposed the motion. Considering Plaintiffs’ failure to articulate any
11 La. C.C.P. art. 1424(B) provides, in pertinent part: “[u]pon request, a person not a party may
obtain without the required showing a statement concerning the action or its subject matter previously made by that person.”
17 prejudice caused by the trial court’s ruling, we find this assignment of error
unpersuasive.
III. Sufficiency of the Evidence
In their tenth assignment of error, Plaintiffs claim there was insufficient
evidence to support the jury’s decision awarding them no damages. We disagree.
Defendants introduced ample evidence to support the jury’s finding that
Joshua was not involved in the accident and that Keyon’s alleged injuries were not
proximately caused by the accident. The locations of his cellphone location
suggest Joshua was nowhere near the accident. Likewise, the sequence of Keyon
making four calls to Joshua within twenty-five minutes of the accident suggest that
Joshua was not involved in the accident. And Joshua’s explanation, after being
confronted with these records, that Keyon called Joshua four times to tell him to
remain in the truck when both were allegedly at the accident scene, was not
convincing.
Plaintiffs’ shifting testimony regarding the facts of the accident, their prior
medical and accident history, and their medical treatment after the accident
likewise undermined their credibility and the reliability of their doctors’ testimony.
Keyon’s claims that he could not lift or move heavy objects after the accident, that
he could no longer sell scrap by himself after the accident, and that his truck was
totaled by the accident—proven demonstrably false by video evidence—provided
additional evidence undermining Plaintiffs’ credibility. In sum, the jury had ample
evidence to support its zero damage award. We find no merit in this assignment of
error.
DECREE
18 For the foregoing reasons, the judgment of the trial court dismissing Keyon
and Joshua Youngblood’s claims against Deone Hampton, Reinhart
Transportation, LLC, and Ace American Insurance Company is affirmed.
AFFIRMED