Lyons v. JA Auger, Inc.

821 So. 2d 536, 2002 WL 1285162
CourtLouisiana Court of Appeal
DecidedJune 12, 2002
Docket35,691-CA
StatusPublished
Cited by3 cases

This text of 821 So. 2d 536 (Lyons v. JA Auger, Inc.) 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
Lyons v. JA Auger, Inc., 821 So. 2d 536, 2002 WL 1285162 (La. Ct. App. 2002).

Opinion

821 So.2d 536 (2002)

Joan M. LYONS, Provisional Tutrix of the Minor Children, Johnny Ray Allen and Jennifer Lynn Allen, Plaintiff-Appellant
v.
J.A. AUGER, INC., Reliance Insurance Company of Illinois and Francis Brown, Defendant-Appellee.

No. 35,691-CA.

Court of Appeal of Louisiana, Second Circuit.

June 12, 2002.
Rehearing Denied August 8, 2002.

*537 W. Mark McKee, Ronald Patrick Camp, West Monroe, for Plaintiff-Appellant.

Michael J. Fontenot, Monroe, for Defendant-Appellee.

Before NORRIS, STEWART and DREW, JJ.

NORRIS, Chief Judge.

This appeal arises out of an auto accident involving a 1994 Subaru, driven by Kelly Jo Allen, and a 1994 International tractor trailer driven by Francis Brown for J.A. Auger, Inc. The children of Ms. Allen, through their tutrix, Joan Lyons, appeal the trial court's judgment finding that they had not carried their burden of proof by a preponderance of the evidence that Mr. Brown was at fault for the accident. We affirm.

Facts

On October 15, 1998, at about 6:30 a.m., Kelly Jo Allen was driving to work at Bancroft Bag and Francis Brown was driving an 18-wheeler from J.A. Auger Trucking in Farmerville to the paper mill in West Monroe, La.

Both were driving south on North 7th Street, a four-lane road in West Monroe, La. Prior to the collision, Mr. Brown and his rig were in the inside or left-hand lane; Ms. Allen, in her Subaru, was in the outside or right-hand lane. Near the intersection of Drago Street and North 7th Street, the vehicles collided, causing Ms. Allen's car to spin and cross the centerline, where it was struck by a second 18-wheeler in the oncoming, northbound, lanes. Ms. Allen died as a result of injuries sustained in the accident.

*538 The children of Ms. Allen, through their tutrix, Joan Lyons, brought this action against Brown, J.A. Auger, Inc., and their insurer Reliance Insurance Company. The plaintiffs alleged that Brown was at fault for the accident and sought damages for wrongful-death, pre-impact fear, and special damages.

After a full trial on the merits, the trial court found that the plaintiffs had not carried their burden of proof by a preponderance of the evidence that Mr. Brown was at fault for the accident, and dismissed the plaintiffs' suit with prejudice. The court found that Mr. Brown was operating his truck in a prudent and safe manner, that he had remained in his lane, the inside lane, at all times, and that Ms. Allen was at fault for the accident.

The plaintiffs appeal asserting two assignments of error. First, the plaintiffs argue that the trial court erred in allowing an expert witness for the defense to testify as to his use of a computer simulation without demonstrating its requisite reliability pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Second, the plaintiffs claim that the trial court did not properly consider all of the evidence.

Discussion—Expert Testimony

The plaintiffs argue that the trial court erred in allowing testimony concerning Mr. Gonzales's use of a computer simulation without demonstrating its requisite reliability pursuant to Daubert's guidelines for the admissibility of scientific evidence. Daubert, supra at 588, 113 S.Ct. 2786. The plaintiffs argue that the computer program used could not properly simulate the actual vehicles involved in this accident and that therefore it was not reliable under the Daubert standard as scientific evidence.

In this case, Mr. Alfred Gonzales was accepted by the court as an expert in accident reconstruction for the defendants. Mr. Gonzales is a retired trooper for the State Police, who has practiced as a full time accident reconstructionist for 13 years, and is certified by the Accreditation Commission for Traffic Accident Reconstructionists. He testified that he has been accepted as an expert in accident reconstruction almost one hundred times by the courts of three states, including Louisiana. His qualifications as an expert are not challenged by plaintiffs in this appeal. Mr. Gonzales testified that it was his expert opinion that Ms. Allen's vehicle encroached into the path of Mr. Brown's 18-wheeler.

Mr. Gonzales stated that he based his opinion solely upon his examination of the evidence of the accident, including the accident reports, witness statements, photographs, and positioning of the vehicles and yaw marks. He testified that he only used a computer simulation to test some of his theories as to the cause of the accident and the location of the skid marks left by the vehicles. He further testified that the simulation results confirmed his theories. However, Mr. Gonzales informed the court that all computer simulations are imperfect recreations of the circumstances of an accident, and the particular EDSMAC program that he used was unable to represent articulated and dual wheeled vehicles like 18-wheelers. Mr. Gonzales testified that, while computer simulations can be a useful tool to test certain aspects of a theory, they should not be the sole evidence relied upon by an expert to formulate an opinion about the causes of an accident.

In this case, the simulation was never entered into evidence before the court as scientific proof of the cause of the accident. No exhibit showing the start, middle or ending of the simulation was ever admitted into evidence. Mr. Gonzales stated that he developed his opinion as to the cause of *539 the accident based solely on the facts of the accident and his expertise, independent of this simulation.

La.C.E. art. 703 entitled "Bases of opinion testimony by experts," provides the following:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in a particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. (emphasis added)

Because the computer simulation itself was not entered into evidence as scientific proof of the cause of the accident, and because Mr. Gonzales's expert opinion was based on evidence other than the result of this one computer program, it was not necessary for the trial court to perform a Daubert analysis as to the admissibility of the computer simulation. Article 703 provides that an expert may base his opinion on material that would be inadmissible as evidence if the material is of a type reasonably relied upon by experts in the particular field. Willie v. American Casualty Co., 547 So.2d 1075 (La.App. 1 Cir. 1989), writ denied 584 So.2d 678 (La.1991). It was therefore proper for the trial court to allow Mr. Gonzales to testify as to the results of the simulation, without performing a Daubert analysis of the simulation, if it believed that Mr. Gonzales's reliance on the simulation was a reasonable one for experts in his field. Therefore, we find that plaintiffs' assignment of error under Daubert lacks merit.

Louisiana Code of Evidence article 703 is a verbatim reproduction of Federal Rule of Evidence 703. Id. Under the federal rule, much deference is given to the expert's opinion that other experts in his field reasonably rely on the inadmissible sources of information. Id., citing

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821 So. 2d 536, 2002 WL 1285162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lyons-v-ja-auger-inc-lactapp-2002.