MICHELLE LEININGER * NO. 2023-CA-0574
VERSUS * COURT OF APPEAL BRITTANIE HEANEY, THE * SHERWIN-WILLIAMS FOURTH CIRCUIT COMPANY, AND ACE * AMERICAN/CHUBB STATE OF LOUISIANA INSURANCE COMPANY *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2020-00141, DIVISION “M” Honorable Paulette R. Irons, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins)
Alicia M. Bendana Jennifer E. Barriere Lorin R. Scott LUGENBUHL, WHEATON, PECK, RANKIN & HUBBARD 601 Poydras Street, Suite 2775 New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLANT, Michelle Leininger
Steven E. Holden (admitted pro hac vice) Laura J. Grabouski (admitted pro hac vice) HOLDEN LITIGATION, HOLDEN PC 10000 North Central Expressway, Suite 360 Dallas, TX 75231
Robert E. Williams, IV SULZER & WILLIAMS, LLC 201 Holiday Boulevard, Suite 335 Covington, LA 70433
Scott R. Hunsaker (admitted pro hac vice) TUCKER ELLIS LLP 100 South Fourth Street, Suite 600 St. Louis, MO 63102 Smita Gautam (admitted pro hac vice) TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113
COUNSEL FOR DEFENDANTS/APPELLEES, Brittanie Heaney, The Sherwin-Williams Company, and ACE American Insurance Company
VACATED AND REMANDED AUGUST 15, 2024 DNA
DLD
SCJ
The case underlying this appeal involves an automobile accident. Appellant,
Michelle Leininger (“Ms. Leininger”), seeks review of the trial court’s May 31,
2023 judgment, which denied her Motions in Limine to exclude the testimony of
Dr. Charles Bain (“Dr. Bain”) and Dr. Kevin Greve (“Dr. Greve”) and to exclude
collateral source evidence about medical payments made by her attorney. In
addition to seeking reversal of the May 31, 2023 judgment, Ms. Leininger seeks a
reversal of the June 1, 2023 judgment rendered in accordance with the jury verdict.
For the following reasons, we vacate the June 1, 2023 judgment and remand this
matter for a new trial.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On January 9, 2019, Ms. Leininger and Brittanie Heaney (“Ms. Heaney”)
were in a motor vehicle accident in New Orleans, Louisiana. When the accident
occurred, Ms. Heaney was in the course and scope of her employment with The
Sherwin-Williams Company (“Sherwin-Williams”), who was insured by ACE
American Insurance Company (“ACE”). On January 7, 2020, Ms. Leininger filed a
Petition for Damages in Civil District Court for the Parish of Orleans, wherein she
named Ms. Heaney, Sherwin-Williams, and ACE as defendants (collectively
1 “Defendants”). Therein, Ms. Leininger alleged that she suffered personal injuries
as a result of the accident. Ultimately, Ms. Leininger specified that she suffered
from and was diagnosed with neck and back injuries, as well as chronic intractable
post-traumatic migraine headaches.
As the matter proceeded before the trial court, on January 31, 2023,
Defendants filed a “Motion and Incorporated Memorandum to Supplement
Witness List Instanter and Motion for Expedited Consideration” (“Motion to
Supplement Witness List”). Therein, Defendants sought to supplement their
witness list to include Dr. Bain and Dr. Greve. In their Motion to Supplement
Witness List, Defendants described Dr. Bain as an accident reconstructionist,
biomechanical engineer, and medical doctor. Defendants explained that Dr. Bain
would “opine on the severity of the [a]ccident, [Ms. Leininger]’s risk of injury, and
the cause of [Ms. Leininger]’s alleged brain and spinal injuries.” Further,
Defendants attached Dr. Bain’s expert report, curriculum vitae, fee schedule, a list
of prior testimony, and his deposition availability. Regarding Dr. Greve,
Defendants listed him as a clinical psychologist and neuropsychologist. They
explained that Dr. Greve would “opine on [Ms. Leininger]’s cognitive and
psychological status and the cause of her past and ongoing post-concussion
syndrome or post-traumatic headaches.” Attached to Defendants’ Motion to
Supplement Witness List were Dr. Greve’s declaration, curriculum vitae, fee
schedule, and a list of prior testimony. Defendants’ Motion to Supplement Witness
List was timely per the district court’s scheduling order. On February 9, 2023, the
trial court held a hearing and ruled, in pertinent part, on Defendants’ Motion to
Supplement Witness List. The trial court orally granted Defendants’ Motion to
Supplement Witness List at the February 9, 2023 hearing but did not sign the
2 judgment to that effect until March 31, 2023. At the February 9, 2023 hearing, the
trial court also instructed the parties that they needed to file any Daubert motions
at least 65 days prior to trial.1
However, on April 17, 2023, the trial court signed a supplemental and
amending scheduling order, which stated that Daubert motions for Dr. Bain and
Dr. Greve were to be filed by May 5, 2023. Thereafter, on May 1, 2023, Ms.
Leininger filed a “Motion and Incorporated Memorandum in Support of Plaintiff’s
Global Motion in Limine to Exclude Certain Evidence at Trial” (“First Motion in
Limine”). Therein, Ms. Leininger moved the trial court to exclude Dr. Bain and
Dr. Greve from testifying. In pertinent part, Ms. Leininger’s only contentions that
Dr. Greve should not be allowed to testify were that he is “a psychologist who does
not possess a medical degree” and that his testimony would be “cumulative of”
another doctor’s testimony. Additionally, Ms. Leininger moved the trial court to
exclude reference or testimony to collateral sources, including any reference to
payments or guarantees of payment for medical expenses by [her] counsel,” which
she deemed would be “particularly prejudicial.” Then, on May 4, 2023, Ms.
Leininger filed an “Ex Parte Motion to Continue Trial” (“Motion to Continue”)
wherein she moved to continue the trial which was set for May 15, 2023. However,
on May 5, 2023, Ms. Leininger then filed a “Motion to Withdraw Ex Parte Motion
to Continue Trial” wherein she sought to withdraw her Motion to Continue and
requested that the trial court set her Daubert motions to be heard on May 15, 2023,
prior to the start of trial. Additionally, on May 5, 2023, Ms. Leininger filed a
“Motion Pursuant to [La. C.C.P.] art. 1425 and/or Motion in Limine and/or
1 See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993).
3 Daubert Motion to Exclude Charles E. ‘Ted’ Bain” (“Second Motion in Limine”).
In her supporting memorandum, Ms. Leininger contended that the trial court
should not allow Dr. Bain to testify regarding force-of-impact during the subject
accident and that Dr. Bain’s testimony failed to meet the requirements of La. C.E.
art. 702 regarding the admissibility of expert testimony.
On May 15, 2023, trial began in this matter. In pertinent part, the following
colloquy occurred at the outset of the trial regarding the motions to exclude Dr.
Bain and Dr. Greve from testifying:
THE COURT: Good morning. There are a few motions in limines [sic] that we need to make a ruling on. I read both the motion as well as the opposition. As it relate to Dr. Charles Bain I will allow him. It is my understanding you-all agreed that he would not discuss medical. Is that correct?
[COUNSEL FOR DEFENDANTS]: He is not here as a medical doctor and not to talk about it.
THE COURT: Is that correct, Counselor? He is not going to testify as a medical doctor? Do you have an agreement?
[COUNSEL FOR MS. LEININGER]: I believe what you-all said is that he is not going to testify to the plaintiff’s specific injuries but he will testify that he does not believe that anybody could be hurt in that type of accident. He said he --
THE COURT: As a biomechanic engineer he is going to be allowed. . . .
[THE COURT:] Dr. Kevin Greve is a neuropsychologist.
[COUNSEL FOR DEFENDANTS]: Neuropsychologist, yes.
THE COURT: He will be allowed as well. Any challenges on that will have to be done in the cross.
4 After orally denying Ms. Leininger’s Motions in Limine regarding Dr. Bain and
Dr. Greve, the trial court then moved onto other preliminary matters before the
start of testimony.
The trial court also denied Ms. Leininger’s Motion in Limine regarding
collateral source evidence. As pertinent to this appeal, during closing statements,
Defendants’ counsel introduced Ms. Leininger’s counsel’s payments in the context
of alleging that Ms. Leininger does not have to reimburse her attorney for money
spent on her medical bills. Specifically, defense counsel stated that Ms. Leininger’s
counsel “paid for nearly all of the medical [bills]” and that the jury could “come
back with zero for [Ms. Leininger].” Counsel for Defendants cautioned the jury
not to “spend a second wondering” if Ms. Leininger would have to reimburse her
attorney. Ultimately the jury awarded Ms. Leininger $35,000 for past medical
expenses and $0 for future medical expenses even though Ms. Leininger sought
$101,726.59 and $216,463.00, respectively.
The trial court signed a judgment denying Ms. Leininger’s Motions in
Limine regarding Dr. Bain, Dr. Greve, and collateral source evidence on May 31,
2023. Then, on June 1, 2023, the trial court signed a judgment in accordance with
the jury verdict. It stated, in pertinent part:
This action . . . came for trial on May 15, 2023 before a jury, the Honorable Paulette R. Irons, Civil District Court Judge, presiding, and the issues having been duly tried, and the jury having duly rendered its verdict,
IT IS ORDERED, ADJUDGED, AND DECREED that the Plaintiff, Michelle Leininger (“Leininger”), recover from the Defendants, Brittanie Heaney, The Sherwin-Williams Company, and Ace American/Chubb Insurance Company (“Defendants”) and Defendants pay to Leininger, the full principal amount of SEVENTY- TWO THOUSAND EIGHTEEN AND 97/100 ($72,018.97) DOLLARS, plus judicial interest, pursuant to La. Code Civ. Pro. Art.
5 1921 and as set forth at La. R.S. 13:4202, from the date of judicial demand (January 7, 2020) until such time as the judgment is paid.
Ms. Leininger’s timely appeal to this Court followed.
ASSIGNMENTS OF ERROR
On appeal, Ms. Leininger asserts three assignments of error:
1. The trial court committed reversible, legal error in denying Ms. Leininger’s Daubert motion seeking to exclude the introduction of testimony by Dr. Charles Bain in any manner.
2. The trial court committed reversible, legal error in denying Ms. Leininger’s Daubert motion seeking to exclude or limit the testimony of Kevin Greve, Ph.D.
3. The trial court committed reversible, legal error in denying Ms. Leininger’s motion in limine seeking to exclude testimony, argument or opinion as to payment of her medical bills by collateral sources, specifically by her attorney.
We address each of these in turn.
DISCUSSION
Assignment of Error Number One: Dr. Bain
In her first assignment of error, Ms. Leininger asserts that “[t]he trial court
committed reversible, legal error in denying [her] Daubert motion seeking to
exclude the introduction of testimony by Dr. Charles Bain in any manner.” In her
sub-arguments under this assignment of error, Ms. Leininger first contends that
“Dr. Bain’s testimony was irrelevant to causation in light of the undisputed
medical and lay testimony that Ms. Leininger sustained some injuries in the
accident.” Second, Ms. Leininger argues that Dr. Bain’s testimony was not based
on sufficient facts or data but on assumptions derived from his remote review.” In
her third sub-argument, Ms. Leininger asserts that “Dr. Bain’s
biomechanical/accident reconstruction methods were not testable, do not have a
6 known rate of error, are not generally accepted by the community, and were not
subjected to appropriate peer review of criticism.”
As a preliminary matter, we address Ms. Leininger’s contention in her brief
that the trial court “fail[ed] to state any reasons for judgment, findings of fact, or
conclusions of law as required by [La. C.C.P. art.] 1425(F)” when deciding to
permit Dr. Bain to testify. This argument has merit and establishes the standard of
review for Ms. Leininger’s first assignment of error.
“Under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),[ ] and adopted by our
Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1122 (La. 1993),[ ] the
trial court is required to perform a ‘gatekeeping’ function to ‘ensure that any and
all scientific testimony or evidence admitted is not only relevant, but reliable.’”
Allen v. Eagle Inc., 2022-0386, 0387, p. 9 (La. App. 4 Cir. 8/10/22), 346 So.3d
808, 814-15 (quoting Versluis v. Gulf Coast Transit Co., 2008-0729, p. 5 (La. App.
4 Cir. 7/29/09), 17 So.3d 459, 463). Louisiana Code of Civil Procedure Article
1425 provides, in pertinent part:
F. (1) Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court.
(2) The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days prior to the trial. At the hearing, the court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Articles 104(A) and 702 through 705 of the Louisiana Code of Evidence. For good cause shown, the court may allow live testimony at the contradictory hearing.
7 (3) If the ruling of the court is made at the conclusion of the hearing, the court shall recite orally its findings of fact, conclusions of law, and reasons for judgment. If the matter is taken under advisement, the court shall render its ruling and provide written findings of fact, conclusions of law, and reasons for judgment not later than five days after the hearing.
(4) The findings of facts, conclusions of law, and reasons for judgment shall be made part of the record of the proceedings. The findings of facts, conclusions of law, and reasons for judgment shall specifically include and address:
(a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(b) The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial.
(c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.
(d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.
(5) A ruling of the court pursuant to a hearing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law.
(6) Notwithstanding the time limitations in Subparagraphs (1), (2), and (3) of this Paragraph, by unanimous consent of the parties, and with approval by the court, a motion under this Paragraph may be filed, heard, and ruled upon by the court at any time prior to trial. The ruling by the court on such motion shall include findings of fact, conclusions of law, and reasons for judgment complying with the provisions of Subparagraph (4) of this Paragraph.
La. C.C.P. art. 1425(F) (emphasis added). Per La. C.C.P. art. 1425(F), when ruling
on whether a witness will qualify as an expert or whether the witness’
methodologies are reliable, a trial court must provide its findings of fact,
conclusions of law, and reasons for judgment. The findings of facts, conclusions of
law, and reasons for judgment must specifically include and address the elements
8 required to be satisfied for a person to testify under La. C.E. arts. 702-705; the
evidence presented to satisfy the requirements of La. C.E. arts. 702-705; the trial
court’s decision as to whether the person will be allowed to testify under La. C.E.
arts. 702-705; and the trial court’s reasons detailing in law and fact why the person
shall be allowed or disallowed to testify under La. C.E. arts. 702-705.
As this Court has previously explained, “[i]t is well-established that the trial
court is afforded wide discretion in determining whether expert testimony should
be admitted and who should not be qualified as an expert.” Schwarzenberger v. La.
State Univ. Health Scis. Ctr. New Orleans, 2017-0024, p. 6 (La. App. 4 Cir.
8/24/17), 226 So.3d 1200, 1205 (citing Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118
S.Ct. 512, 139 L.Ed.2d 508 (1997)). Thus, “[a] trial court’s decision to qualify or
disqualify an expert will not be overturned absent an abuse of discretion.” Id.
(citing Cheairs v. State ex rel. Dep’t of Transp. & Dev., 2003-0680, p. 6 (La.
12/3/03), 861 So.2d 536, 541). This is because “[w]hether an expert meets the
qualifications of an expert witness and the competency of the expert witness to
testify in specialized areas is within the sound discretion of the trial court.” Id. at p.
7, 226 So.3d at 1205 (alteration in original) (quoting Everhardt v. La. Dep’t of
Transp. & Dev., 2007-0981, p. 15 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036,
1048).
However, to comply with La. C.C.P. art. 1425(F), the trial court cannot
“provide[] only general reasoning to accept . . . an expert” because this “is
insufficient to meet the detailed requirements . . . of La. C.C.P. art. 1425(F).”
Murphy Cormier Gen. Contractor, Inc. v. State, Dep’t of Health & Hosps., 2012-
1000, p. 11 (La. App. 3 Cir. 5/22/13), 114 So.3d 567, 577. If the trial court failed
to comply with the requirements of La. C.C.P. art. 1425(F) and conducted no
9 Daubert analysis, this constitutes a legal error. Id. See also Taylor v. Exxon Mobil
Corp., 2023-0759, p. 3 (La. App. 4 Cir. 12/27/23), 381 So.3d 108; Carpenter v.
Thomas, 2022-0872, p. 7 (La. App. 1 Cir. 3/13/23), 362 So.3d 977, 982 (citations
omitted); Robertson v. Doug Ashy Bldg. Materials, Inc., 2010-1552, p. 23 (La.
App. 1 Cir. 10/4/11), 77 So.3d 339, 355 (citing Corkern v. T.K. Valve, 2004-2293,
pp. 6-7 (La. App. 1 Cir. 3/29/06), 934 So.2d 102, 107); Arceneaux v. Shaw Grp.,
2012-0135, pp. 7-8 (La. App. 1 Cir. 9/24/12), 103 So.3d 1086, 1091. In such an
instance, the appellate court reviews the matter de novo. Allen, 2022-0386, 0387,
pp. 8-9, 346 So.3d at 814.
As stated previously, the trial court denied Ms. Leininger’s Motion in
Limine regarding Dr. Bain from the bench prior to the start of trial on May 15,
2023. When the trial court denied Ms. Leininger’s Motion in Limine and decided
to permit Dr. Bain to testify, the following colloquy occurred:
THE COURT: Good morning. There are a few motions in limines [sic] that we need to make a ruling on. I read both the motion as well as the opposition. As it relate to Dr. Charles Bain I will allow him. It is my understanding you-all agreed that he would not discuss medical. Is that correct?
[COUNSEL FOR DEFENDANTS]: He is not here as a medical doctor and not to talk about it.
THE COURT: Is that correct, Counselor? He is not going to testify as a medical doctor? Do you have an agreement?
[COUNSEL FOR MS. LEININGER]: I believe what you-all said is that he is not going to testify to the plaintiff’s specific injuries but he will testify that he does not believe that anybody could be hurt in that type of accident. He said he --
THE COURT: As a biomechanic engineer he is going to be allowed. . . .
10 As the above transcript excerpt demonstrates, in ruling on Ms. Leininger’s Motion
in Limine regarding Dr. Bain prior to the start of trial, the trial court did not
include any findings of facts, conclusions of law, and reasons for judgment as
required by La. C.C.P. art. 1425(F). Rather, the trial court merely explained that
Dr. Bain would be allowed to testify as a biomechanic engineer and confirmed that
the parties agreed that Dr. Bain would not testify as a medical doctor. Accordingly,
we review Ms. Leininger’s first assignment of error de novo.
At the outset, it should be noted that while the parties agreed that Dr. Bain
would not testify as a medical doctor, counsel for Ms. Leininger later objected to
Defendants’ counsel moving to admit Dr. Bain as an expert in accident
reconstruction and biomechanical impact. In particular, counsel for Ms. Leininger
“object[ed] to Dr. Bain being allowed to testify because his methodology in the
case is totally unreliable.” By so objecting, counsel for Ms. Leininger preserved
this issue for review. See State v. Boudoin, 2011-967, pp. 18-19 (La. App. 5 Cir.
12/27/12), 106 So.3d 1213, 1225-26 (holding the appellant preserved the issue for
appeal because the appellant stipulated to the witness’ expertise at the Daubert
hearing but then objected to her testimony at trial); cf. Everhardt v. La. Dep’t of
Transp. & Dev., 2007-0981, pp. 10-11 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036,
1045-46 (explaining that after the trial court denied the appellant’s motion in
limine to strike an expert’s testimony and the appellant did not object to the
appellee tendering the plaintiff as an expert, the appellant effectively waived any
objections it might otherwise have had as to his expert qualifications or the
admissibility of his expert testimony). However, because Ms. Leininger did not
specifically object on the basis that “Dr. Bain’s testimony was irrelevant to
causation in light of the undisputed medical and lay testimony that Ms. Leininger
11 sustained some injuries in the accident” (an argument which she first asserted in
her Second Motion in Limine and now reasserts on appeal), Ms. Leininger waived
this, and we will not address it. For the same reason, we will not address Ms.
Leininger’s argument that Dr. Bain’s testimony was not based on sufficient facts or
data but on assumptions derived from his remote review. Rather, we only address
Ms. Leininger’s argument that Dr. Bain’s biomechanical/accident reconstruction
methods were not testable, do not have a known rate of error, are not generally
accepted by the community, and were not subjected to appropriate peer review of
criticism because this is the basis on which she objected to his admission as an
expert.
In LaBauve v. Louisiana Medical Mutual Insurance Co., the Louisiana
Supreme Court explained the analysis Louisiana courts must perform per Daubert:
In State v. Foret, 628 So.2d 1116, 1122-23 (La. 1993), we adopted the four non-exclusive factors established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to be considered by district courts in determining the admissibility of expert testimony:
(1) the “testability” of the scientific theory or technique;
(2) whether the theory or technique has been subjected to peer review and publication;
(3) the known or potential rate of error; and
(4) whether the methodology is generally accepted in the scientific community
2021-00763, pp. 3-4 (La. 4/13/22), 347 So.3d 724, 728. In discussing Daubert, this
Court has held that the proponent of the expert’s testimony “bear[s] the burden of
proving that the methodology employed by the proposed expert is generally
accepted in the appropriate or relevant scientific community.” Boudreaux v.
12 Bollinger Shipyard, 2015-1345, 0958, p. 2 (La. App. 4 Cir. 6/22/16), 197 So.3d
761, 764 (first citing State v. Hampton, 2015-1222, p. 17 (La. App. 4 Cir.
12/23/15), 183 So.3d 769, 779; and then citing Wingfield v. State ex rel. Dep’t of
Transp. & Dev., 2001-2668, p. 10 (La. App. 1 Cir. 11/8/02), 835 So.2d 785, 797).
Per Boudreaux, Defendants bore the burden of proving that Dr. Bain’s
methodology was generally accepted in the appropriate or relevant scientific
community. Defendants did not demonstrate that before the trial court nor have
they done so before this Court. Instead, Defendants explain that Dr. Bain is an
engineer and that he reviewed the State of Louisiana Motor Vehicle Traffic Crash
Report; repair estimates and appraisals for both vehicles; Ms. Leininger’s and Ms.
Heaney’s depositions; photographs of the scene of the accident and of the vehicles
involved; and Ms. Leinigner’s relevant medical records. Further, Defendants
explain that Dr. Bain “obtained an exemplar three-dimensional model of” of one of
the vehicles, which “was scaled and validated according to vehicle specifications.”
Then, according to Defendants, “[a] plane representing the crush depth was
oriented to [Ms. Leininger’s car] to determine the crush depth and width.”
Defendants state that “Dr. Bain used the software package EDCRASH to calculate
the crush force for [Ms. Leininger’s car] based on [its] crush profile.” Additionally,
Defendants explain that “Dr. Bain utilized EDSMAC4, a software package used to
reconstruct vehicle collisions, to simulate the dynamics of the collision,” which
“methodology is widely accepted for use in accident reconstruction” (according to
Dr. Bain’s own report).
Of the four matters required by the Daubert-Foret analysis, Defendants fail
to speak to (1) the “testability” of the scientific theory or technique; (2) whether
Dr. Bain’s theory or technique has been subjected to peer review and publication;
13 and (3) the known or potential rate of error. Defendants contend that Dr. Bain’s
accident reconstruction method is widely accepted (i.e., the fourth element of the
Daubert-Foret analysis), but their support for this is Dr. Bain’s own report, such
that it is self-serving. Considering the foregoing, the trial court erred in denying
Ms. Leininger’s Motion in Limine regarding Dr. Bain and by allowing him to
testify. Because this error could have interdicted the jury’s decision, we vacate the
trial court’s June 1, 2023 judgment and remand this matter for a new trial.
Assignment of Error Number Two: Dr. Greve
In her second assignment of error, Ms. Leininger asserts that “[t]he trial
court committed reversible legal error in denying the [Dr.] Greve [Daubert] motion
and allowing [Dr.] Greve to offer improper opinion testimony.” In her sub-
arguments to this assignment of error, Ms. Leininger first contends that Dr. Greve
was not qualified to render an opinion on medical causation because his education
and professional background was in clinical psychology and neuropsychology.
Second, Ms. Leininger argues that Dr. Greve’s “improper opinions conflate[d] Ms.
Leininger’s psychological and physical condition.” Third and finally, Ms.
Leininger asserts that Dr. “Greve’s improper proposed and actual opinion that his
testing revealed Ms. Leininger to have suffered no cognitive deficits or disability
was irrelevant and prejudicial.”
However, in her First Motion in Limine filed with the trial court, Ms.
Leininger’s only contentions that Dr. Greve should not be allowed to testify were
that he is “a psychologist who does not possess a medical degree” and that his
testimony would be “cumulative of” the testimony of another doctor. Ms.
Leininger’s Second Motion in Limine only concerned Dr. Bain. Thus, when the
trial court ruled on Ms. Leininger’s Motions in Limine, Ms. Leininger’s only
14 arguments as to why Dr. Greve should not be allowed to testify were confined to
the two in her First Motion in Limine, i.e., that he is not a medical doctor and that
his testimony was redundant. Though Ms. Leininger opposed Dr. Greve’s expert’s
testimony by Motion in Limine pursuant to Daubert, “Daubert concerns
admissibility of the expert’s opinion and not his qualification as an expert in the
area tendered.” MSOF Corp. v. Exxon Corp., 2004-0988, p. 12 (La. App. 1 Cir.
12/22/05), 934 So.2d 708, 718 (citing Comeaux v. C.F. Bean Corp., 1999-0924
(La. App. 4 Cir. 12/15/99), 750 So.2d 291, 296 n.3). Additionally, “[o]nly a
question of the validity of the methodology employed [by an expert] brings
Daubert into play.” Id. (citing Tadlock v. Taylor, 2002-0712, p. 5 (La. App. 4 Cir.
9/24/03), 857 So.2d 20, 26). See also Cheairs, 2003-0680, p. 8, 861 So.2d at 541
(noting that “the Daubert court was clearly not concerned with the issue raised by
[the appellant] herein—whether the expert is qualified solely by education to give
opinion testimony concerning a particular matter” and finding “an important
consideration in” the case was “the fact that [the appellant did] not question
methodology regarding [the appellee’s expert]’s testimony, methodology being the
primary concern of the Daubert case).
As the Louisiana Supreme Court has explained, if a Motion in Limine does
not invoke Daubert based on the foregoing, these principles “should not, however,
be interpreted to mean that a court should not consider an expert’s qualifications
when deciding whether to admit a particular expert’s testimony, only that the
Daubert case does not directly address that issue.” Cheairs, 2003-0680, p. 8, 861
So.2d at 542. Rather, the determination of the admissibility of the expert’s
testimony should be based on La. C.C.P. art. 702. Id. at p. 8, 861 So.2d at 541-42
(citation omitted). Because Ms. Leininger’s Motion in Limine neither questioned
15 Dr. Greve’s qualification as an expert in psychology/neuropsychology nor
questioned the validity of the methodology employed by Dr. Greve, Daubert did
not apply to the trial court’s assessment of whether Dr. Greve should be permitted
to testify. Therefore, Ms. Leininger is incorrect in arguing that Daubert applied to
her Motion in Limine regarding Dr. Greve. Nonetheless, the trial court failed to
comply with La. C.C.P. art. 1425(F)’s mandate to provide findings of fact,
conclusions of law, and reasons for judgment. When deciding that Dr. Greve
would be permitted to testify, the trial court merely stated, “Dr. Kevin Greve is a
neuropsychologist,” and “[h]e will be allowed as well.” Because the trial court
erred in failing to comply with the requirements of La. C.C.P. art. 1425(F), as with
assignment of error number one, we conduct another de novo review. See Allen,
2022-0386, p. 9, 346 So.3d at 814.
Louisiana Code of Evidence Article 702 provides the standard for
admissibility of expert testimony. If a witness “is qualified as an expert by
knowledge, skill, experience, training, or education” then the witness “may testify
in the form of an opinion or otherwise if:”
(1) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.
La. C.E. art. 702(A). As the Louisiana Supreme Court has explained, “the
admissibility of expert testimony under [La. C.C.P.] art. 702 ‘turns upon whether it
would assist the trier of fact to understand the evidence or to determine a fact in
16 issue.’” Cheairs, 2003-0680, p. 8, 861 So.2d at 541-42 (citation omitted).
Regarding evidence that is allegedly cumulative of other evidence, this Court has
held that “where evidence is admitted that is merely cumulative of other evidence
in the record, any error in its admission is generally viewed as harmless.”
Everhardt, 2007-0981, p. 15, 978 So.2d at 1048 (first citing Kaufman v. Sewerage
& Water Bd. of N.O., 1999-1942, p. 15 (La. App. 4 Cir. 5/3/00), 762 So.2d 644,
653; and then citing Graves v. Riverwood Int’l Corp., 41,810, p. 6 (La. App. 2 Cir.
1/31/07), 949 So.2d 576, 582).
The record indicates that Dr. Greve was qualified as an expert by
knowledge, skill, experience, training, or education” to testify in the field of
psychology/neuropsychology. Dr. Greve is a clinical neuropsychologist with
multiple degrees in psychology (a bachelor’s degree in psychology, a master’s
degree in clinical psychology, and a doctorate in clinical psychology, with a
specialization in clinical neuropsychology). The record further reveals that Dr.
Greve is a Diplomate in Clinical Neuropsychology from the American Board of
Professional Psychology and a Fellow of the National Academy of
Neuropsychology. When the trial in this matter commenced, Dr. Greve had worked
in the field for forty years, including more than two decades as a University
Research Professor in the Department of Psychology at the University of New
Orleans. Additionally, at the time of trial, Dr. Greve had published more than 120
papers in peer-reviewed neuropsychology, psychology, and medical journals,
including papers on the assessment of the effects of traumatic brain injury and
chronic pain. Also, in his clinical practice as a licensed neuropsychologist in
Louisiana, Dr. Greve conducted approximately fifty psychological evaluations a
year (mostly claims of traumatic brain injury and/or chronic pain), as well as
17 clinical evaluations of dementia, depression, post-traumatic stress disorder, and the
psychological effects of medical illness. Regarding how Dr. Greve’s knowledge
would “help the trier of fact to understand the evidence or to determine a fact in
issue,” Defendants explained in their Motion to Supplement Witness List that Dr.
Greve would testify that contrary to Ms. Leininger’s allegation that a concussion
during the accident is what caused her to have ongoing head injuries, Ms.
Leininger’s ongoing problems could stem from preexisting, untreated
neuropsychological issues.
Further, the record indicates that Dr. Greve’s testimony was “based on
sufficient facts or data;” was “the product of reliable principles and methods;” and
reliably applied the principles and methods to the facts of the case. La. C.E. art.
702(A)(3-4). In preparing his opinions, Dr. Greve reviewed the State of Louisiana
Motor Vehicle Traffic Crash Report; police body-worn camera footage from the
scene of the accident; Ms. Leininger’s depositions; the depositions of Ms.
Leininger’s designated experts; the report of Defendants’ expert neurologist; and
Ms. Leininger’s relevant medical records. Additionally, Dr. Greve performed a
clinical interview with Ms. Leininger that lasted one hour and was followed by two
days of neuropsychologist testing of Ms. Leininger. Dr. Greve interpreted the
results based on the guidance of the American Academy of Clinical
Neuropsychology. He then determined how Ms. Leininger’s cognitive, behavioral,
psychological, and emotional state may have related to her ongoing headaches in
the four years post-accident rather than the alleged concussion she endured during
the accident. The record demonstrates that Dr. Greve’s testimony would assist the
trier of fact in understanding whether Ms. Leininger’s persistent headaches were
associated with the accident or unrelated to it. Finally, regarding Ms. Leinigner’s
18 contention that Dr. Greve’s testimony was cumulative of another doctor’s
testimony, even if this were true, any error in admitting Dr. Greve’s testimony was
harmless per this Court’s jurisprudence.
In light of the foregoing, we find that the trial court committed legal error in
failing to state its findings of fact, conclusions of law, and reasons for judgment
regarding Dr. Greve in accordance with La. C.C.P. art. 1425(F). Nonetheless, we
conclude that the trial court did not err in denying Ms. Leininger’s Motion in
Limine as it relates to Dr. Greve. Dr. Greve was qualified as an expert by his
knowledge, skill, experience, training, or education in the field of
psychology/neuropsychology. This scientific, technical, or other specialized
knowledge served to assist the trier of fact in understanding another potential cause
of Ms. Leininger’s persistent head issues that was unrelated to the subject accident.
Additionally, Dr. Greve’s testimony was based on sufficient facts or data; his
testimony was the product of reliable principles and methods; and he reliably
applied the principles and methods to the facts of the case. Thus, the trial court did
not err in its May 31, 2023 judgment in denying Ms. Leininger’s Motion in Limine
with regard to Dr. Greve.
Assignment of Error Number Three: Collateral Source
In her third and final assignment of error, Ms. Leininger argues that “[t]he
trial court committed reversible, legal error in denying Ms. Leininger’s motion in
limine seeking to exclude testimony, argument or opinion as to payment of her
medical bills by collateral sources, specifically by her attorney.” Ms. Leininger
contends that “Louisiana jurisprudence is clear that evidence of collateral source
payments is neither admissible nor relevant to the litigation and in the absence of
an exception, admission of collateral source testimony constitutes a reversible
19 error” and that “[t]his principle is rooted in [La. C.E. art.] 409” (footnotes omitted).
Ms. Leininger states that Defendants’ counsel ended his closing argument by
mentioning that Ms. Leininger’s attorney paid her medical bills and that Ms.
Leininger would not have to reimburse her attorney. According to Ms. Leininger,
“[t]he introduction of payments by Ms. Leininger’s counsel, and the representation
that she would not have to pay the bills back, guided the jury in its low award to
Ms. Leininger which did not even cover past medical payments” (footnotes
omitted). Countering, Defendants assert that this situation is not covered by the
collateral source rule because “[t]he collateral source rule does not extend to
attorney-negotiated discounts during litigation.” Additionally, Defendants argue
that because Ms. Leininger’s counsel referred her to her treating physicians, Dr.
Beaucoudray and Dr. Mohnot, such a referral “can be relevant to the issue of bias”
and was therefore admissible as an exception to La. C.E. art. 409.
“The ‘collateral source’ rule means that the tortfeasor may not benefit, and
an injured plaintiff’s tort recovery may not be diminished, because of benefits
received by the plaintiff from sources independent of the tortfeasor’s procuration
or contribution.” Francis v. Brown, 1995-1241, p. 7 (La. App. 3 Cir. 3/20/96), 671
So.2d 1041, 1046 (citing Kidder v. Boudreaux, 1993-859 (La. App. 3 Cir. 5/19/94),
636 So.2d 282, 284). As Ms. Leininger correctly observes, the collateral source
rule stems from La. C.E. art. 409, which pertains to “[p]ayment of medical and
similar expenses.” It provides:
In a civil case, evidence of furnishing or offering or promising to pay expenses or losses occasioned by an injury to person or damage to property is not admissible to prove liability for the injury or damage nor is it admissible to mitigate, reduce, or avoid liability therefor. This Article does not require the exclusion of such evidence when it is offered solely for another purpose, such as to enforce a contract for payment.
20 La. C.E. art. 409.
To determine whether the collateral source rule applies, Louisiana courts are
to “consider whether the ‘victim has procured the collateral benefits for himself or
has in some manner sustained a diminution in his or her patrimony in order to
secure the collateral benefits such that he or she is not merely reaping a windfall or
double recovery.’” George v. Progressive Waste Sols. of La, Inc., 2022-01068, p. 8
(La. 12/9/22), 355 So.3d 583, 589 (quoting Bellard v. Am. Cent. Ins. Co., 2007-
1335, 1399, p. 20 (La. 4/18/08), 980 So.2d 654, 669). In interpreting La. C.E. art.
409, the Louisiana Supreme Court has held that “an attorney-negotiated medical
discount or ‘write-off’ is not a payment or benefit that falls within the ambit of the
collateral source rule.” Hoffman v. 21st Century N. Am. Ins. Co., 2014-2279, p. 10
(La. 10/2/15), 209 So.3d 702, 708. However, the collateral source rule does
prevent reference to payments made by a plaintiff’s attorney to cover medical
expenses. Francis, 1995-1241, pp. 9-10, 671 So.2d at 1047-48. While La. C.E. art.
409 “does not require the exclusion of [collateral source] evidence when it is
offered solely for another purpose,” Defendants did not offer it for another
purpose. Rather, during closing statements, Defendants’ counsel introduced Ms.
Leininger’s counsel’s payments in the context of alleging that Ms. Leininger will
not have to reimburse her attorney for that money spent, not in the context that
payments by Ms. Leininger’s counsel could indicate bias by Ms. Leininger’s
treating physicians (an argument which Defendants now assert on appeal). This
argument about bias was merely made in hindsight on appeal to try to avoid the
collateral source issue here. Defendants did not argue bias before the jury when
discussing Ms. Leininger’s counsel’s payments. Moreover, the United States
District Court for the Middle District of Louisiana (“Middle District”) rejected
21 such an argument in Feagins v. Wal-Mart Stores, Inc., (M.D. La. Sept. 20, 2017),
2017 WL 8944098, at *1. Therein, discussing Francis, the Middle District
explained that payment by an attorney of his or her client’s medical bills “is
precisely the ground upon which the court in Francis found that the evidence had
been improperly admitted.” Id. The Middle District further explained that “any
possible probative value connected to counsel’s payment of the medical bills [wa]s
outweighed by unfair prejudice” and excluded the evidence. Id.
In the matter sub judice, Ms. Leininger sought to exclude evidence of her
medical expenses that were paid by her attorney and for which she alleged that she
has an obligation to pay back. This is precisely the type of evidence that the
Louisiana Third Circuit Court of Appeal (“Third Circuit”) and the Middle District
have held is covered by the collateral source rule in Francis and Feagins,
respectively. Moreover, both of Ms. Leininger’s treating physicians confirmed in
their depositions that they did not have an attorney-negotiated medical discount or
“write-offs” with Ms. Leininger’s counsel. Thus, the Louisiana Supreme Court’s
holding in Hoffman (i.e., attorney-negotiated medical discounts or write-offs do not
fall under the collateral source rule) is inapplicable here. Accordingly, the trial
court erred in denying Ms. Leininger’s Motion in Limine regarding exclusion of
collateral source evidence of Ms. Leininger’s counsel paying for her medical bills.
When this issue comes to the appellate court at the post-trial phase, an
appellate court can undertake a de novo review of the evidence and implement its
own damages award. See Francis, 1995-1241, p. 11, 671 So.2d at 1048 (the Third
Circuit undertook a de novo review of the evidence and implemented its own
award, explaining “[h]aving found the trial court committed reversible error, we
therefore find the jury committed manifest error or they were clearly wrong on the
22 amount of damages awarded [to the plaintiff]”); Guillory v. Lee, 2008-661 (La.
App. 3 Cir. 12/10/08), 998 So.2d 891 (wherein the Third Circuit amended the
jury’s award, but the Louisiana Supreme Court concluded that the Third Circuit
erred in amending the jury’s verdict because a reasonable factual basis existed for
the jury’s award). However, having already concluded in assignment of error
number one that remand for a new trial is necessary, we pretermit discussion of
whether the record supports the jury’s award.
DECREE
For the foregoing reasons, we find that the trial court did not err in its May
31, 2023 judgment in denying Ms. Leininger’s Motion in Limine with regard to
Dr. Greve. However, we further find that the trial court did err in its May 31, 2023
judgment in denying Ms. Leininger’s Motion in Limine with regard to Dr. Bain
and the collateral source rule. Having determined that the trial court erred in these
respects, we vacate the trial court’s June 1, 2023 judgment rendered in accordance
with the jury verdict and remand this matter for a new trial consistent with this
Opinion.
VACATED AND REMANDED