STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
19-915
MOHAB SAID
VERSUS
FEDERATED RURAL ELECTRIC INSURANCE
EXCHANGE, ET AL.
**********
APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. C-2013-0786-A HONORABLE MARTHA ANN O'NEAL, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
AFFIRMED. Jeffrey A. Mitchell Monica C. Sanchez Hugo L. Chanex The Cochran Firm – New Orleans 3850 N. Causeway Blvd., Suite 1500 Metairie, LA 70001 (504) 309-5000 COUNSEL FOR PLAINTIFF/APPELLANT: Mohab Said
Charles S. Jones Charles A. Sam Jones, III, Inc. 105 N. Stewart Street Deridder, LA 70634 (337) 463-5532 COUNSEL FOR PLAINTIFF/APPELLANT: Mohab Said
Andy Dupre Gary M. Carter Jr. Carter Dupre LLP 2401 Westbend Parkway Suite 3070 New Orleans, LA 70114 (504) 459-2309 COUNSEL FOR PLAINTIFF/APPELLANT: Mohab Said
Kenneth R. Spears Claudia H. Gary Jeffery D. Fruge Spears & Gary, LLC One Lakeshore Drive, Suite 900 Lake Charles, LA 70629 (337) 513-4333 COUNSEL FOR DEFENDANT/APPELLEE: Federated Rural Electric Insurance Exchange Beauregard Electric Cooperative Inc. SAUNDERS, Judge.
This case involves an appeal from the verdict of a personal injury jury trial
wherein the plaintiff recovers for some, but not all, injuries he allegedly sustained in
an automobile accident. The plaintiff alleges errors by the trial court in denying his
request for his treating physicians to testify as experts based on the pretrial order,
allowing violations of the collateral source rule, and issuing erroneous and
conflicting jury instructions. Further, the plaintiff asserts error by the jury in failure
to award full past medical expenses.
FACTS AND PROCEDURAL HISTORY:
On December 30, 2011, Mohab Said (Said) was riding in the rear passenger
side of a Ford Focus car. As it was traveling through Elizabeth, Louisiana, the Focus
was struck on the rear passenger side by a truck owned by Beauregard Electric
Cooperative.
Said visited several local physicians after the accident and was diagnosed with
a brain injury by two physicians while a third ordered an MRI to be performed. The
third physician was unable to find anything unusual on the MRI results.
Thereafter, Said moved to Washington, D.C. where, in 2014, he began
treatment with Dr. Macedo. Another MRI was ordered that indicated a white matter
spot on the frontal lobe of Said’s brain. Dr. Macedo then referred Said to a
neuropsychologist who found cognitive impairments. In 2015, the Veterans
Administration (VA) declared Said disabled with a brain injury.
In December of 2012, Said sued the Beauregard Electric Cooperative, its
insurer Federated Rural Electric Exchange, and Jimmy Ray Craft, the driver of the
truck, for pain and suffering, mental anguish, past and future medical expenses, lost
wages, loss of earning capacity, loss and impairment of life’s pleasures, and disability. Craft was later voluntarily dismissed, and the case proceeded against the
electric co-op and its insurer (collectively “defendants”).
After various discovery, a trial date was set and the trial court entered a pre-
trial order directing the parties to file a witness list, which included a requirement
that the parties designate their witnesses as lay witnesses or expert witnesses. Said
designated some of his physicians as both treating physicians and experts, but others
only as treating physicians. Based on the differing designations, defendants filed a
motion in limine to limit the testimony of the physicians not labeled as experts. The
trial court granted the motion, and, thereafter, at trial, limited the testimony of those
physicians labeled only as “treating physicians” to testimony as to the diagnosis at
the time of treatment.
Said also filed pretrial motion in limine to exclude evidence that he received
VA disability. The trial court granted only part of the motion, allowing Said’s status
as disabled to be introduced, but not that Said received disability benefits.
Near the beginning of the trial, the trial court advised the jury that instructions
on the law would be given at the end of the trial and that part of a jury’s duty is
weigh each witnesses’ testimony, whether they are lay person, a doctor that’s a
treating physician or an expert. At the end of the trial, the trial judge gave the jury
instruction that the testimony of a treating physician is to be given greater weight.
After the trial and deliberations, the jury awarded Said $42,428.00, which
included $20,000.00 for pain and suffering, $10,000.00 for mental anguish and
suffering, and $12,428.00 for past medical expenses. The jury awarded nothing for
future medical expenses, lost wages, loss of earning capacity, loss of enjoyment of
life, and permanent disability. Said then filed this devolutive appeal alleging four
assignments of error.
2 ASSIGNMENTS OF ERROR:
[1]. The district court abused its discretion in refusing to qualify the plaintiffs’ local treating physicians as experts and limiting their testimony.
[2]. The district court abused its discretion, and violated the collateral source rule, in admitting evidence that the plaintiff was on disability from the VA.
[3]. The district court legally erred in issuing erroneous and conflicting jury instructions on the weight of the testimony of the treating physicians.
[4]. The jury committed manifest error in failing to award the plaintiff his full past medical expenses as shown by his medical bills.
ASSIGNMENT OF ERROR NUMBER ONE:
In his first assignment of error, Said argues that the trial court abused its
discretion in refusing to qualify his local treating physicians as experts and limiting
their testimony. We find merit to this assignment.
“A district court is accorded broad discretion in determining whether expert
testimony should be held admissible and who should or should not be permitted to
testify as an expert.” Cheairs v. State Dep’t. of Transp. and Dev., 03-680, p. 6
(La.12/3/03), 861 So.2d 536, 541. Likewise, a trial court has discretion regarding
issuing a pretrial order and how strictly to adhere to that pretrial order under La.Code
Civ.P. art. 1551.
Louisiana Code of Civil Procedure article 1551 states:
A. In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following:
(1) The simplification of the issues, including the elimination of frivolous claims or defenses.
(2) The necessity or desirability of amendments to the pleadings.
(3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted. 3 (4) Proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence.
(5) Limitations or restrictions on or regulation of the use of expert testimony under Louisiana Code of Evidence Article 702.
(6) The control and scheduling of discovery including any issues relating to disclosure or discovery of electronically stored information, and the form or forms in which it should be produced.
(7) Any issues relating to claims of privilege or protection of trial preparation material, and whether the court should include agreements between counsel relating to such issues in an order.
(8) The identification of witnesses, documents, and exhibits.
(9) The presentation of testimony or other evidence by electronic devices.
(10) Such other matters as may aid in the disposition of the action.
B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
C. If a party’s attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471 (2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.
D. If a suit has been pending for more than one year since the date of filing of the original petition and no trial date has been assigned, upon motion of any party, the court shall set the matter for conference for the purpose of resolving all matters subject to the provisions of this Article, including the scheduling of discovery, assignment for trial, and any other matters that will expedite the resolution of the suit. The conference may be conducted in chambers, by telephone, or by video teleconference.
4 “The discretion for adherence to a pretrial order is based on prevention of
injustice by surprisingly having to litigate an issue while unprepared.” Richard v.
Quality Const. and Prod., LLC, 18-965, p. 4 (La.App. 3 Cir. 6/5/19), 275 So.3d 328,
333, writ denied 19-1101 (La. 10/8/19), 280 So.3d 591. “While pre-trial orders assist
the trial court in the orderly management of its cases, La.C.C.P. Art. 1551 does not
authorize severe limitation of a party’s rights for the technical, though justifiable,
violation of a pre-trial order.” Neff v. Rose, 546 So.2d 480, 483 (La.App 4 Cir.), writ
denied, 551 So.2d 1322 (La.1989). Although “a trial judge has great discretion in
deciding whether to receive or refuse the testimony objected to on the grounds of
failure to abide by the rules,” any doubt must be resolved in favor of receiving the
information. Curry v. Johnson, 590 So.2d 1213, 1216 (La.App. 1 Cir.1991).
In Griffin v. Tenneco Oil Co., 625 So.2d 1090 (La.App. 4 Cir.1993), writ
denied, 93-2710 (La. 1/7/94), 631 So.2d 449, an oil company’s witness was properly
allowed to testify as an expert, even though he was not designated as expert on the
pretrial order. The ruling of our sister court was based on the lack of ambush or
surprise on the opposing party because it knew the witnesses’ position, knowledge,
and expertise prior to trial.
In the case before us, Said designated some physicians as “treating
physicians/experts,” but only listed others as “treating physicians.” Despite the
differing designations, allowing these treating physicians to testify as experts would
not have ambushed, surprised, or in any way caught defendants unprepared.
Contrarily, defendants argue that allowing these physicians to testify as experts
would have been cumulative as their testimony was the same as other experts
testifying in the case. Thus, defendants had knowledge of what the treating
physicians’ expert testimony would entail and were prepared for that testimony
given the alleged cumulative nature. These physicians appeared on the witness list, 5 were deposed by defendants, and defendants knew the physicians’ positions,
knowledge, and expertise prior to the trial. Given that no manifest injustice would
befall defendants were these treating physicians allowed to testify as experts plus the
mandate that any doubt as to testimony being proper being resolved in favor of
hearing it, we find that the trial court abused its discretion in denying those treating
physicians to testify as experts. Thus, we find the trial court erred in limiting the
testimony of Said’s treating physicians.
However, erroneous exclusion of evidence does not always constitute
reversible error.
Error has been defined as harmless when it is “trivial, formal, merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case.” 5 Am.Jur.2d, Appeal and Error § 776 (1962) (citing State v. Britton, 27 Wash.2d 336, 341, 178 P.2d 341, 344 (1947)); Eastburn v. Ford Motor Co., 471 F.2d 21, 22-23 (5th Cir.1972) (applying Florida law). By contrast, prejudicial error “affects the final result of the case and works adversely to a substantial right of the party assigning it.” 5 Am.Jur.2d, Appeal and Error § 776 (1962); see also 5A C.J.S. § 1676 (1958). Moreover, error is prejudicial when it consists of the exclusion of evidence related to a “material point in issue” and adversely affects the substantial rights of the party opposed to the exclusion. 5 Am.Jur.2d, Appeal and Error § 776 (1962).
Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76, 85, (La.1990).
Here, while it is possible that the jury could have found the expert testimony
of Said’s local treating physicians more credible than that of his treating physicians
in Washington, D. C., we cannot say that exclusion of the testimony affected the
final result of the case or adversely impacted Said’s substantial rights. Said was able
to present the information and opinions that these local treating physicians were to
give through a different conduit, his Washington, D. C. treating physicians.
Therefore, the jury was aware of the existence of expert medical opinion that Said’s
brain injury was related to the accident and did not find, as fact, that this allegation
6 had merit. Accordingly, alone, this error by the trial court limiting the local treating
physician’s testimony does not constitute reversible error.
ASSIGNMENT OF ERROR NUMBER TWO:
Next, Said contends that the trial court abused its discretion, and violated the
collateral source rule, in admitting evidence that he was on disability from the VA.
We find no merit to this contention.
“On appeal, a trial court’s admission or exclusion of evidence is subject to an
abuse of discretion review. ‘The trial court is accorded vast discretion’ concerning
the admission of evidence, and its decision will not be reversed on appeal absent an
abuse of that discretion.” Libersat v. J & K Trucking, Inc., 00-192, p. 11 (La.App. 3
Cir. 10/11/00), 772 So.2d 173, 179, (quoting O’Neill v. Thibodeaux, 97-1065
(La.App. 3 Cir. 3/6/98), 709 So.2d 962) writ denied, 98-0741 (La.5/1/98); 718 So.2d
416, writ denied, 01-458 (La. 4/12/01), 789 So.2d 598.
“Under the collateral source rule, a tortfeasor may not benefit, and an injured
plaintiff’s tort recovery may not be reduced, because of monies received by the
plaintiff from sources independent of the tortfeasor’s procuration or contribution.”
Bozeman v. State, 03-1016, p. 9 (La. 7/2/04), 879 So.2d 692, 698 (quoting La. Dep’t
of Transp. & Dev. v. Kansas City S. Ry., 02-2349 (La.5/20/03), 846 So.2d 734, 739).
“From an evidentiary perspective, the rule bars the introduction of evidence that a
plaintiff has received benefits or payments from a collateral source independent of
the tortfeasor’s procuration or contribution.” Id. at 699. Medical care received from
the Veteran’s Administration (VA) is a collateral source. Id. at 698 (citing Fullilove
v. U.S. Cas. Co. of N.Y., 129 So.2d 816 (La.App. 2 Cir.1961)).
Here, Said asserts the trial court abused its discretion in denying his motion in
limine to exclude his VA disability status as a collateral source. The trial court ruled
that his disability status was admissible, but that all amounts paid by the VA to Said 7 were not admissible. Said argues that this finding is in error because the jury’s
knowledge of his disability status with the VA implied that he was already being
compensated and treated for his injuries.
The trial court properly adhered to the collateral source rule by excluding any
evidence regarding the amount received from the VA by Said. Further, we find no
evidence that Said’s status as disabled by the VA was a source tending to reduce his
recovery. Contrarily, evidence that the VA labeled Said as disabled tends to show
that Said was, in fact, injured, an element Said must prove at trial. Said’s status as
disabled in no way tends to prove or disprove that his injury was a result of the
accident, nor does it tend to show the extent of Said’s alleged injury. Therefore, any
prejudice against Said from the jury’s knowledge of his disabled status is minimal
versus the status helping Said prove an element of his case. Accordingly, we find
no abuse of discretion by the trial court in allowing Said’s disability status with the
VA to be admitted at trial.
ASSIGNMENT OF ERROR NUMBER THREE:
Third, Said asserts that the trial court legally erred in issuing erroneous and
conflicting jury instructions on the weight of the testimony of the treating physicians.
This assertion lacks merit.
Generally, a court of appeal reviews a jury’s finding of fact under a manifest
error standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d
880 (La.1993). However, “[w]hen a jury is given incorrect instructions in the law,
or when a trial court makes a consequential error in the exclusion of evidence, no
weight should be accorded the judgment of the trial court which implements the jury
verdict.” McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986).
[W]hen a trial court applies incorrect legal principles and these errors materially affect the outcome of a case and deprive a party of substantial rights, legal error occurs. Evans v. Lungrin, 97-541, 97-577 8 (La. 2/6/98), 708 So.2d 731. “[W]here one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.” Id. at 735.
Joubert v. Joubert, 19-349, p. 3 (La.App 3 Cir. 11/13/19), 285 So.3d 7, 11.
“An appellate court must exercise great restraint before overturning a jury
verdict on the suggestion that the instructions were so erroneous as to be prejudicial.”
Boutee v. Nissan Motor Corp., 94-1470, p. 9 (La.App. 3 Cir. 9/13/95), 663 So.2d
154, 160 (citing Aetna Life & Cas. Co. v. AMI-Elec. & Hoist Serv., 93-1291 (La.App.
3 Cir. 5/4/94), 637 So.2d 173). “Ultimately, the pertinent inquiry is whether the jury
was misled to such an extent as to be prevented from doing justice.” Iorio v. Grossie,
94-846, p. 3 (La.App. 3 Cir. 10/4/95), 663 So.2d 366, 369.
Here, Said argues that the trial court erred by giving erroneous and conflicting
jury instructions on the weight of treating physician testimony. Near the beginning
of the trial, the court advised the jury that instructions on the law would be given at
the end of the trial and that part of a jury’s duty is to weigh each witnesses’
testimony, whether they are lay person, a doctor that’s a treating physician or an
expert. Later, when giving the jury closing instructions, the trial judge advised the
jury that “in general the observations and opinion of the testimony of a treating
physician are accorded greater weight than that of a physician who has only seen the
party for the purposes of rendering expert opinion concerning the party’s condition.”
When considering the instructions as a whole, we find that the trial court’s
instructions were not so erroneous as to be prejudicial or mislead the jury. While the
trial judge did not initially provide the “greater weight” instruction, it did do so
before the jury retired for deliberations. Doing so provided the jury with the correct
principle of law to apply to the issues presented.
9 Further, the jury was not misled by the trial judge’s initial statements on the
weight to give to witnesses. Jurors, as the trier of fact, are required to weigh the
testimony of all witnesses. It is not prejudicial or misleading to inform the jury that
part of its general duty to weigh witness testimony at the outset of the trial. Further,
any confusion that the trial judge’s initial statements may have created would have
been subsequently cured when the more specific “greater weight” directive was
provided in the closing instructions. Consequently, we find no manifest error by the
trial court in providing conflicting or erroneous jury instructions.
ASSIGNMENT OF ERROR NUMBER FOUR:
Finally, Said argues that the jury committed manifest error in failing to award
his full past medical expenses as shown by his medical bills. We find no merit to
this argument.
“An appellate court reviews an award of special damages pursuant to the
manifest error standard of review.” Cormier v. Colston, 05-507, p. 9 (La. App. 3 Cir.
12/30/05), 918 So.2d 541, 547-48. “Medical expenses are a component of special
damages.” Id. “Because the discretion vested in the trier of fact is so great, and even
vast, an appellate court should rarely disturb an award on review.” Guillory v. Lee,
09-75, p. 14 (La. 6/26/09), 16 So.3d 1104, 1117 (citing Youn v. Maritime Overseas
Corp., et al., 623 So.2d 1257 (La.1993)).
“Under Louisiana law, a plaintiff may be awarded past medical expenses
incurred as a result of an injury.” Stiltner v. Nat’l Union Fire Ins. Co., 00-2230 (La.
App. 4 Cir. 10/3/01), 798 So.2d 1132, 1138. The plaintiff bears the burden of proving
special damages by a preponderance of the evidence. Iwamoto v. Wilcox, 04-1592
(La.App. 3 Cir. 4/6/05), 900 So.2d 1047. “[W]hen a plaintiff alleges that he or she
has incurred medical expenses and presents a bill to support that allegation, that
evidence is sufficient to support an award for past medical expenses, unless there is 10 sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to
the accident.” Stiltner, 798 So.2d at 1138.
“An appellate court, in reviewing a jury’s factual conclusions with regard to
special damages, must satisfy a two-step process based on the record as a whole:
there must be no reasonable factual basis for the trial court’s conclusion, and the
finding must be clearly wrong.” Menard v. Lafayette Ins. Co., 09-1869, p. 14 (La.
3/16/10), 31 So.3d 996, 1007 citing Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953
So.2d 802; Guillory v. Ins. Co. of North Am., 96-1084 (La.4/8/97), 692 So.2d 1029).
“The issue to be resolved on review is not whether the jury was right or wrong, but
whether the jury’s fact finding conclusion was a reasonable one.” Id.
Said contends that the jury was manifestly erroneous in failing to award him
the entirety of his past medical expenses entered into evidence. Mr. Said submitted
$83,284.00 of medical bills into evidence and alleged that he incurred all of them
due to the accident. The jury awarded Said $12,428.00 for past medical expenses.
Said argues that there is no evidence that he incurred all of the submitted bills
for any reason unrelated to the accident, and, as such, the jury erred in failing to
award him for all of his medical bills. He supports his argument with the recognized
tenet that tortfeasors are required to pay the expenses of over treatment or
unnecessary medical treatment unless the treatment was incurred in bad faith. Jones
v. Progressive Sec. Ins. Co., 16-463 (La.App. 3 Cir. 12/29/16), 209 So.3d 912.
While Said is correct that, absent bad faith, a jury errs if it fails to award the
full amount of medical expenses submitted, the plaintiff must first prove that those
medical bills were incurred as a result of the accident. Said’s argument neglects this
prerequisite and skips to a proclamation that defendants failed to prove bad faith on
his part. Defendants only have this burden when a submitted medical bill was for
treatment of an injury causally connected to the accident. 11 Here, the jury’s award of $12,428.00 for medical bills aligns with its award to
Said for personal injury damages. The jury, in performance of its fact finder duty,
seemingly found that Said failed to carry his burden to prove that all his alleged
injuries, most notably his brain injury, were causally connected to the accident.
Thus, the question on review of this assigned error is whether the jury was manifestly
erroneous in reaching this conclusion.
After reviewing the record, we find that the jury had a reasonable factual basis
to find that Said failed to prove that his brain injury was causally connected to the
accident and, as such, to limit Said’s award for medical bills as it did. There is
evidence in the record Said suffered from dizziness and being off-balance on several
occasions prior to the accident. Further, Said was not diagnosed with a traumatic
brain injury until about two years after the accident after first undergoing an MRI
that showed no such injury. Additionally, the jury was presented with conflicting
expert evidence on the causation of of his symptoms. Finally, the jury was aware
that Said, after the accident, exhibited academic prowess in obtaining advanced
college degrees. This evidence sufficiently supports the jury’s findings related to
what injuries were related to the accident, the extent of those injuries, and the amount
it awarded Said in medical bills. Therefore, we find no manifest error in the jury’s
award for medical bills.
CONCLUSION:
Mohab Said raises four assignments of error in this matter against Beauregard
Electric Cooperative and its insurer, Federated Rural Electric Exchange. We find
error by the trial court in disallowing expert testimony from Mohab Said’s local
treating physicians based solely on a differing designation in the pretrial order.
However, we do not find this error, alone, constitutes reversible error. We find no
12 merit to Mohab’s remaining three assignments of error. Costs of this appeal are
assessed to Mohab Said.
AFFIRMED.