McMahon v. Regional Transit Authority

704 So. 2d 392, 1997 La. App. LEXIS 2901, 1997 WL 764408
CourtLouisiana Court of Appeal
DecidedDecember 10, 1997
DocketNo. 96-CA-1770
StatusPublished
Cited by3 cases

This text of 704 So. 2d 392 (McMahon v. Regional Transit Authority) 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
McMahon v. Regional Transit Authority, 704 So. 2d 392, 1997 La. App. LEXIS 2901, 1997 WL 764408 (La. Ct. App. 1997).

Opinions

h JONES, Judge.

This is an appeal from a judgment awarding Mona McMahon $166,000 in damages for injuries sustained when she was struck by a bus owned and operated by defendants Regional Transit Authority (RTA), and Transit Management of Southeast Louisiana (TMSEL).

FACTS

On November 20,1986, a bus owned by the RTA struck appellant, Mona McMahon, while she was riding her bicycle. Plaintiff alleged that as a result of the accident, she sustained a linear skull fracture.

Defendants, RTA, TMSEL, and Duane Boulden stipulated to liability prior to trial. Suit against the RTA was tried before a judge alone, and the suit against TMSEL and Mr. Boulden was tried before a jury. At the conclusion of trial, the jury awarded Ms. McMahon $75,000 for past pain and suffering and mental anguish, $75,000 for future pain and suffering and mental anguish, $10,000 in past medical expenses, $6,000 in future medical expenses, and nothing for past and future impaired earning capacity. The court adopted the jury verdict and entered judgment against TMSEL and Mr. Boulden in the amount of $166,000, after thefrtrial court had rendered judgment in favor of Ms. McMahon and against the RTA in the amount of $166,000. It is from these judgments that Ms. McMahon appeals.

DISCUSSION

In her first assignment of error, Ms. McMahon argues the jury and the trial court erroneously determined that all of her injuries were not attributable to the defendant’s negligent conduct. Specifically, Ms. McMahon argues the evidence of prior drug use and of her unstable early family life was insufficient to justify such a low award of damages. We agree. Based upon the evidence presented at trial, we find that the defendants failed to establish the relevance of her prior drug use.

There was never a dispute between the parties as to the genuineness of Ms. McMahon’s injuries. The defendants acknowledge that she suffers from constant, chronic headaches, and various emotional problems. The question before the court was that of causation.

The defendant’s allege that the cause of Ms. McMahon’s present medical problems [394]*394is her extensive history of drug abuse. Ms. McMahon testified that she stopped taking intravenous drugs in 1974 or 1975, cocaine in 1976, and stopped taking all drugs by 1978. However, she admitted using cocaine once in April of 1989, when she visited her boyfriend in an attempt to reconcile their relationship.

In support of their contention, the defendants rely upon the testimony of Dr. Richard Garey. Prior to his testimony, Ms. McMahon objected to the acceptance of Dr. Garey as an expert witness and requested a hearing to further question him about his qualifications. This type of limited hearing is commonly referred to as a “Daubert” hearing. It allows the trial court to conduct a preliminary assessment of whether the reasoning or methodology underlying the purported testimony is scientifically valid and whether it can be applied to the facts at issue. The trial 13 court is to determine by asking whether the technique has been subjected to peer review or publication, by inquiring as to the known or potential rate of error, the standards controlling the techniques’ operation and testability, and finally, whether there has been acceptance in the scientific community. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

After a limited inquiry of Dr. Garey’s qualifications as an expert witness, the trial court accepted him as an expert in the field of neuroscience.1

Dr. Garey testified that when considering Ms. McMahon’s injuries in light of the accident and her history of drug abuse, “it could be either one of the two or most likely a combination of the two, that is if there was some damage through the accident it was exacerbated or made worse by the use of the drugs ...” Additionally, Dr. Garey testified: “I cannot tell what exactly caused the changes in appellant’s personality, but they were probably triggered by the accident or something else that happened in her life, but it could have been a result of the build up of the drug abuse.” (emphasis added).

Dr. Garey failed to demonstrate that his speculation had a reasonable basis in science. His testimony regarding the long term effects of marijuana use was based on tests conducted on monkey’s in the late 70’s and early 80’s. He admitted that these findings could only be extrapolated to humans correctly through high degrees of correlation, which was never shown with regard to long term marijuana use in the human brain. When asked if marijuana can cause a diffuse axonal injury in humans, Dr. Garey replied, “No, I’m going to have to qualify that. Marijuana can do that in monkeys. That is the only evidence in primates that this actually occurs.”

I ¿¡This type of speculation was prevalent throughout most of Dr. Garey’s testimony. Despite his training, Dr. Garey could only suggest that drug use “could” have been a contributing cause of appellant’s problems— he had no opinion whether it was, or even whether it was more probable than not the one and only cause.

In addition to the testimony of Dr. Garey, the jury heard from another defense witness, Dr. Warren Levy. He was accepted by the court as an expert in the fields of neurosurgery and neurology. Dr. Levy examined Ms. McMahon in July of 1987, and in October of 1990.

Dr. Levy opined that Ms. McMahon did not appear to have “any difficulty with what I call higher intellectual functions ... Higher intellectual functions include memory, the ability to speak in [a] manner consistent with your educational background, and the ability to speak without searching for words ...” He further opined that her nerve functions were normal and that she had no residual organic brain injury.

Additionally, he denied the possibility that Ms. McMahon’s headaches were caused by the accident. “In all probability, her headaches have no relationship whatever to the less than one minute of unconsciousness and/or the linear skull fracture and/or possible two areas of bruising in the brain.”

Dr. Levy’s general opinion was that Ms. McMahon’s brain suffered “no abnormality.” This opinion was later tempered by his assertion that her MRI scan revealed two possible [395]*395abnormalities. Dr. Levy testified: “Well that MRI scan, as it was a good scan for its time, disclosed what I thought might be a small bruise on the tip of the temporal lobe on the left side and the frontal lobe on the right side.” Dr. Levy concluded his testimony by stating that in his opinion, Ms. McMahon’s brain is normal.

IsThe jury also heard testimony from several of Ms. McMahon’s treating physicians. First, there was Dr. Louis Garcia-Oller, a neuropsychiatrist licensed in the State of Louisiana who treated Ms. McMahon from November of 1986 to February of 1990. Dr. Garcia-Oller is a board certified specialist in neurological surgery and has specialized in brain surgery since 1947.

Dr. Garcia-Oller testified that, based on his examination of Ms. McMahon just days after her accident, she had a skull fracture and a head injury explaining her condition, but stated that he did not have any x-rays. Dr.

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Bluebook (online)
704 So. 2d 392, 1997 La. App. LEXIS 2901, 1997 WL 764408, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcmahon-v-regional-transit-authority-lactapp-1997.