STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
12-870
QUINCY L. CAWTHORNE
VERSUS
JACE FOGLEMAN, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20102387 HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE
JOHN D. SAUNDERS JUDGE
Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.
JUDGMENT OF DISMISSAL VACATED. REMANDED WITH INSTRUCTIONS.
Conery, J., concurs with reasons.
Edward O. Taulbee, IV Taulbee & Associates P. O. Box 2038 Lafayette, LA 70502-2038 (337) 269-5005 COUNSEL FOR DEFENDANT-APPELLEE: Southern Farm Bureau Cas. Ins. Co. Michael Fogleman Jace Fogleman Pride Justin Doran Doran Law Firm P. O. Box 2119 Opelousas, LA 70571 (337) 948-8008 COUNSEL FOR PLAINTIFF-APPELLANT: Quincy L. Cawthorne SAUNDERS, J.
This case arises out of an automobile accident in Lafayette, Louisiana.
Plaintiff brought suit alleging injury arising out of said automobile accident. A
jury found no negligence on the part of Defendant and the trial court thereby
dismissed the suit. Plaintiff appeals.
FACTS AND PROCEDURAL HISTORY
On April 8, 2009, at approximately 3:58 p.m., Plaintiff, Quincy Cawthorne
(“Cawthorne”), was travelling westbound on Johnston Street in Lafayette,
Louisiana, in his 2007 GMC Yukon. At about that same point in time, Defendant,
Jace Fogleman (“Fogleman”), was leaving his condominium at 2202 Johnston
Street in his 2006 Chevrolet Malibu. Fogleman exited the private driveway of his
complex, turning right into the outside westbound lane onto Johnston Street.
When he did so, or shortly thereafter, the two cars collided.
Officer Chadwick Fontenot (“Office Fontenot”) of the Lafayette Police
Department arrived on the scene shortly after to investigate the accident. He took
two written statements from the parties. Cawthorne provided the following
statement of events:
I was traveling west on Johnston Street when a car pulled out of a private drive onto Johnston Street. I attempted to avoid him but could not, because a car was beside me in the inside line [sic]. I was in the outside lane at the time of the accident. The driver stated that he did not see me.
Fogleman also provided the investigating officer with a written statement of the
events:
I was turning out of 2202 Johnston and was turning right with my blinker on. It was safe to get into the right lane. There were no blinkers indicating that a vehicle needed to switch lanes. I pulled out of my drive and began to drive when I was hit by the Yukon. Fogleman additionally gave a verbal statement, which the officer
summarized as indicating that Fogleman “exited a private lot, making a right turn
onto Johnston Street. He stated it was clear for him to proceed. He stated that he
was making a right turn when his vehicle collided with” Cawthorne‟s vehicle.
Fogleman testified that this accident occurred because Cawthorne changed
lanes, moving from the inside westbound lane and crossing the center line into
Fogleman‟s lane of travel, without signaling and with no advance warning thereby
striking Fogleman‟s vehicle. Fogleman contended he completed his right turn into
the outside lane and was fully occupying that lane.
In his accident report, Officer Fontenot established that the weather was
clear and dry. There were no impediments to Fogleman‟s field of vision from
where he was turning. The speed limit was forty miles per hour, and there was no
evidence of Cawthorne violating the speed limit.
Cawthorne filed suit on April 7, 2010, against Fogleman, Fogleman‟s father,
and their insurance company, asserting he suffered bodily injury, including, but not
limited to, neck and back pain. 1 Fogleman‟s father was later dismissed.
Cawthorne asserted at trial that, as a result of the accident, he sustained
approximately $143,563.62 in past medical expenses. His treating physician, Dr.
George Ray Williams (“Dr. Williams”), performed a lumbar fusion and also
recommended a cervical fusion. Cawthorne also asserted that it was reasonable to
expect he would incur at least $147,255.00 in future medical expenses as a result
of the accident.
Fogleman asserted that he did not cause the accident, but rather it was due to
Cawthorne‟s fault. He offered accident reconstruction testimony by James Lock
(“Lock”), as well as testimony by a diagnostic radiologist, Dr. Curtis Partington
1 Fogleman‟s father was later released from this suit. 2 (“Dr. Partington”). The parties filed several motions in limine pertaining to the
contested issues of whether Fogleman‟s deposition would be allowed in lieu of his
actual appearance at trial, whether Lock would be allowed to testify, and whether
(and to what extent) Partington would be allowed to testify.
The trial court denied Cawthorne‟s motions in limine pertaining to the above
pre-trial motions on February 22, 2012, and further denied his motion for
reconsideration on the first morning of the trial. Trial began on February 27, 2012,
and lasted for four days. The jury returned with a verdict in favor of Fogleman,
finding he was not negligent. Cawthorne appeals.
ASSIGNMENTS OF ERROR
Cawthorne sets forth the following assignments of error:
1. The jury erred in finding Fogleman bore no legal responsibility for the
automobile accident.
2. The trial judge erred in allowing the introduction of Fogleman‟s trial
deposition, instead of requiring that he appear at trial.
3. The trial judge erred in allowing the testimony of James Lock.
4. The trial judge erred in not allowing Cawthorne to present a diagram of the
accident scene prepared by Officer Fontenot.
5. The trial judge erred in allowing the testimony of Dr. Partington.
6. The jury erred by not making an award of damages.
LAW AND ANALYSIS
Standard of Review
An appellate court must do more than simply review the record for some
evidence which supports or controverts a trial court‟s finding; the appellate court
must review the record in its entirety to determine whether the trial court‟s finding
was clearly wrong or manifestly erroneous. Johnson v. Safeway Ins. Co., 98-920 3 (La.App. 3 Cir. 1/6/99), 741 So.2d 32. An appellate court, even if it believes that
errors committed at trial influenced the jury verdict, must undertake an
independent evaluation of the facts and adjudicate the controversy before it.
Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976).
Where there is conflict in testimony as to which party‟s negligence was the
cause of the accident, a fact finder‟s reasonable evaluations of credibility and
inferences of fact should not be disturbed unless they are clearly wrong or
manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue to be
resolved by a reviewing court is not whether the trier of fact was right or wrong,
but whether the fact finder‟s conclusion was a reasonable one. Cosse v. Allen-
Bradley Co., 601 So.2d 1349 (La.1992).
Therefore, to reverse a trial court‟s determination of fact, 1) no reasonable
factual basis must exist for the fact finder‟s conclusions, and 2) the record must
establish the fact finder is clearly wrong or manifestly erroneous. Pinsonneault v.
Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270.
Assignment of Error No. 1: Jury Finding
The first issue raised on appeal by Cawthorne is the jury‟s determination that
Fogleman bore no legal responsibility for the accident. Our review of the record
and facts recited show the evidence can be interpreted in two possible ways—one
which would relieve Fogleman of liability and one which would hold him
accountable. As discussed above, the manifest error rule states that an appellate
court must give great deference to the fact finder‟s reasonable conclusions. When
there are two permissible views of the evidence, the fact finder‟s choice between
them cannot be manifestly erroneous or clearly wrong. Davis v. Ensco Offshore
Co., 06-197 (La.App. 3 Cir. 5/31/06), 931 So.2d 1194. In this case, there are two
4 reasonable interpretations of the facts. Accordingly, we cannot reverse the jury‟s
finding of no legal responsibility on the part of Fogleman.
Assignment of Error No. 2: Fogleman’s Trial Deposition
Fogleman was not present at trial because he voluntarily enrolled in a
transitional program in Spokane, Washington, following his completion of a drug
therapy program. He began seeking therapy in October of 2011 in Utah at a
facility called “Legacy Outdoor Adventures” and completed the program in three
months. He then voluntarily enrolled in the Washington program, “Life Designs,”
which he alleged was for a minimum of five months. This, he asserts, made him
unavailable to testify at trial in February of 2012, and necessitated the use of his
trial deposition.
Louisiana Code of Civil Procedure Article 1450, in pertinent part,
establishes the parameters for the use of deposition testimony at trial for a party or
witness:
A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
....
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(a) That the witness is unavailable; [or]
(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition. . . .
La.Code Civ.P. art. 1450(A)(3). Thus, the requirements for the admissibility of the
deposition of a witness are twofold: (1) the deposition must be admissible under 5 the Louisiana Code of Evidence and (2) the witness must be either (a) unavailable;
(b) residing over one hundred miles from the place of trial without provocation by
the party offering the deposition; or (c) in another state without provocation by the
party offering the deposition.
When the deposition is sought to be used in place of the witness‟ actual trial
testimony, a showing of unavailability of the witness is required. Montgomery v.
Breaux, 297 So.2d 185 (La.1974). A party who is not legally unavailable or who is
intentionally absent from trial due to his choice to be out of state may not submit
his deposition testimony in lieu of live testimony. Boutte v. ABC Ins. Cos., 00-
0649 (La.App. 4 Cir. 2/6/02), 811 So.2d 30. A party whose absence from trial is
attributable to his choice to be out of state on the date of trial is considered to have
procured his own absence. Bruins v. U.S. Fleet Leasing, Inc., 430 So.2d 386
(La.App. 3 Cir. 1983).
In Bruins, the defendant and his wife attempted to offer their depositions in
lieu of appearing at trial but the trial court refused to admit the depositions finding
that they “decided” to be out of Louisiana on the day of trial. Id. at 387.
Defendant “was the party offering the depositions and was also the party
„procuring‟ the absence of the witnesses.” Id. As such, this violated La.Code
Civ.P. art. 1450; defendant was not legally unavailable and was intentionally
absent from trial due to his choice to be out of state; therefore, he could not submit
his deposition testimony in lieu of live testimony when he procured that
unavailability. La.Code Civ.P. art. 1450.
Life Designs is not a medical treatment facility as alleged by Fogleman in his
trial deposition, but a therapeutic program for young adults that “offers fantastic
opportunities for outdoor recreation.” The program was voluntary and served no
medical purpose. At trial, his mother, Rebecca Fogleman, testified that it was 6 “fair” to say her son was not receiving any medical treatment at Life Designs. She
also denied that there was a doctor providing him with any type of medical
treatment there.
No evidence was offered that Fogleman was unable to leave the center except
for his own testimony. Fogleman admitted that he had never discussed with
anyone at the program whether he could leave. In his trial deposition, Fogleman
stated he never even inquired as to whether he could return to Louisiana to testify
at trial and then return to the program. He stated an exception was allowed for him
to give the deposition because it was “very important” to him, but he was unaware
of the criteria for making an exception that would allow him to leave the facility or
take a hiatus. He asserted the facility did not allow him to come and go freely or as
he pleased.
Having permission to come and go freely is very different from the
availability of permission to leave under extraordinary circumstances, such as
being a defendant at trial. In the instant case, our review of the record shows
Fogleman did not show he was legally unavailable. There is no credible proof that
Fogleman could not make it to trial. The only evidence as to why Fogleman was
unavailable was his own self-serving, and false, deposition statement that he was
receiving some sort of medical treatment. In Bourgeois v. A.P. Green Indus., Inc.,
06-87 (La.App. 5 Cir. 7/28/06), 939 So.2d 478, writ denied, 06-2159 (La. 12/8/06),
943 So.2d 1095, the appeals court found the unavailability of a named plaintiff was
not established since the only evidence as to his lack of availability came from
hearsay evidence from the plaintiff‟s attorney, which could not be considered.
Likewise, Fogleman‟s self-serving statements on his ability to leave Life Designs,
without more, are an insufficient showing of unavailability. “A party is not legally
„unavailable‟ as a witness simply because he eschews the trial.” Dickens v. 7 Commercial Union Ins. Co., 99-698, 99-699, p. 5 (La.App. 1 Cir. 6/23/00), 762
So.2d 1193, 1197.
In Dickens, the court of appeal‟s review of the record showed that the
plaintiff Dickens was absent because she chose to attend a conference in Florida
rather than attend the trial of her claim. Dickens argued she was attending a
national conference of which she was a member of the Board of Directors of the
Baton Rouge Chapter. Nevertheless, the court held she was legally available and
her absence was self-procured. Accordingly, she was not entitled to introduce her
deposition testimony under Article 1450, and the trial court abused its discretion in
permitting the introduction of her deposition testimony. Dickens, 762 So.2d 1193.
The instant case is also similar to Wehbe v. Waguespack, 98-475 (La.App. 5
Cir. 10/28/98), 720 So.2d 1267, writs denied, 98-2907 (La. 1/15/99), 736 So.2d
211 and 98-2970 (La. 1/15/99), 736 So.2d 213, where the appeals court upheld a
trial court‟s finding that one of the plaintiffs, who was out of the country, chose to
remain there and was available for trial. In that case, the husband was injured in an
auto accident and filed suit to recover; his wife asserted a claim for loss of
consortium. She did not appear at trial and the trial court excluded her deposition
from evidence. The court noted that the record contained nothing to indicate the
plaintiff‟s failure to attend trial was attributable to any reason other than her choice
to remain in Lebanon. Id.
The trial court abused its discretion in permitting the use of Fogleman‟s
deposition. His live appearance was crucial for the jury to weigh the credibility of
his testimony rather than glean what happened the day of the accident from the
cold record of his deposition. Where there is such a crucial conflict in testimony,
the jury‟s core means of making reasonable evaluations of credibility and
reasonable inferences of fact comes from witnessing live testimony. The use of a 8 deposition in lieu of a key party testifying should not be taken lightly. There is no
supportable evidence in the record that Fogleman could not leave the program to
testify at trial; it only reflects evidence that he chose to remain there. Choosing to
stay at Life Designs in Washington was more for his convenience than out of
necessity. As such, it was self-procured. He was, therefore, legally available.
Thus, we find that he was not entitled to introduce his deposition testimony in lieu
of live testimony. Remand for a trial not inconsistent with this evidentiary holding
is necessary in light of this finding.
Assignment of Error No. 3: James Lock Testimony
A trial judge has wide discretion in determining whether to allow a witness to
testify as an expert, and this includes the determination of how much and what
kind of education and/or training adequately qualifies the individual as an expert,
and such judgment will not be disturbed by an appellate court unless it is clearly
erroneous. Rhine v. Bayou Pipe Coating, 11-724 (La.App. 3 Cir. 11/2/11), 79
So.3d 430.
Louisiana Code of Evidence Article 702 sets forth the general rule for the
admissibility of expert testimony in Louisiana:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
For the expert‟s testimony to qualify as knowledge which would assist the trier of
fact, it must meet four criteria originally established in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and adopted by
Louisiana courts. This inquiry serves to assist the trial judge in making a
preliminary assessment as to the validity of the evidence because the trial judge is
required to act as a gatekeeper in order to ensure “any and all scientific testimony 9 or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589.
These criteria include:
1. The “testability” of the expert‟s theory or technique;
2. Whether the theory or technique has been subjected to peer review and
publication;
3. The known or potential error rate; and
4. Whether the methodology is generally accepted in the scientific
community.
Perret v. Nelson, 98-393, p. 11 (La.App. 5 Cir. 11/25/98), 722 So.2d 1118, 1123,
writ denied, 98-3166 (La. 2/12/99), 738 So.2d 575 (citations omitted).
Cawthorne asserts the trial court abused its discretion in accepting James
Lock as an expert in the field of accident reconstruction and allowing him to
present his expert opinions. Cawthorne argues Lock was unqualified, his opinions
were based on nothing more than common sense, and Lock arbitrarily decided to
believe or disbelieve one witness over the other.
Lock has thirty-seven years of experience in the field of accident
reconstruction. He began his training in 1975 working for the Department of
Transportation Institute at Texas A&M performing contract work for the United
States Department of Transportation. During this six-year period, he performed
thousands of accident investigation reconstructions. He also developed training
courses in accident investigation reconstruction and trained others in the field. He
has been accepted as an accident reconstruction expert by courts in Texas,
Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, Indiana,
Missouri, Tennessee, New York, Ohio, Michigan, South Dakota, California,
Arizona, New Mexico, and Colorado. He has also performed work for various
10 Departments of Transportation including Louisiana, Texas, Missouri, Georgia,
Florida, New Mexico, and Pennsylvania.
In conducting his accident reconstruction evaluation in the instant case, Lock
employed peer-reviewed methodologies recognized and accepted in his field,
including those outlined in the Northwestern Traffic Institute Manual. This
methodology is generally accepted in the scientific community.
It was within the trial court‟s discretion to rule that Lock was qualified to
render expert testimony in his field of accident reconstruction. This was not
clearly erroneous. The trial court did not abuse its discretion in accepting Lock as
an expert. We do not find merit in this assignment of error.
Assignment of Error No. 4: Officer Fontenot Diagram
Cawthorne alleges the trial court abused its discretion in granting Fogleman‟s
Motion in Limine excluding Officer Chadwick Fontenot‟s diagram from evidence
at trial. The trial court is vested with wide discretion in determining the relevancy
of evidence, and his ruling will not be disturbed on appeal in the absence of a clear
showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981).
Officer Fontenot investigated the accident as an officer for the Lafayette
Police Department. He did not witness the accident. Officer Fontenot further
confirmed that the vehicles were moved prior to his arrival; there were no
markings on the roadway related to the accident; there was no debris on or around
the roadway related to the accident; and he did not perform any measurements
during his investigation of the accident.
Officer Fontenot was never qualified, tendered, or accepted as an expert in
this case. As part of the crash report made at the scene of the accident, Officer
Fontenot prepared an unscaled diagram in which he marked an approximate area of
impact. This diagram was not based on any measurements regarding distances 11 and/or spacing of the relevant points, nor was it based on his observation of any
physical evidence at the scene of the accident. In essence, Officer Fontenot
arbitrarily identified and labeled points on the diagram.
Based on this context, the trial court excluded Officer Fontenot‟s diagram on
the basis that it had no probative value and was prejudicial. This exclusion is not
clearly erroneous. The trial court did not abuse its discretion in excluding Officer
Fontenot‟s diagram. We do not find merit in this assignment of error.
Assignment of Error No. 5: Dr. Partington Testimony
Cawthorne asserts the trial court abused its discretion in accepting Dr. Curtis
Partington, a neuroradiologist and licensed medical doctor, as an expert in this
case.
One of the issues presented to the trier of fact was the interpretation of
Cawthorne‟s cervical MRI, performed on May 19, 2009, by Dr. David Jewell,
regarding a possible abnormality at C4-5 and C5-6. Dr. Jewell performed the MRI
upon the referral of Cawthorne‟s treating orthopedic surgeon, Dr. George
Williams. Dr. Jewell concluded the cervical MRI was normal at C4-5 and C5-6.
Dr. Williams also interpreted the MRI and concluded there were abnormalities at
C4-5 and C5-6 and these abnormalities warranted surgical intervention.
Thereafter, Fogleman asked Dr. Curtis Partington to review the MRI and formulate
a third opinion. Dr. Partington was not asked to physically examine Cawthorne, as
is the standard in neuroradiology, only to review the cervical MRI for the existence
of abnormalities.
Dr. Partington has been practicing radiology in Baton Rouge, Louisiana, for
twenty-one years and has been certified in the subspecialty of neuroradiology since
the Board of Neuroradiology was created about sixteen years ago.
Neuroradiology, a subdiscipline of radiology, deals with diagnostic imaging of the 12 brain and spinal cord. Cawthorne stipulated to the qualification of Dr. Partington
in Dr. Partington‟s trial deposition.
On appeal, Cawthorne focuses on the fact that Dr. Partington did not
physically examine Cawthorne or review Cawthorne‟s documentation as to
specific pain complaints, and that Dr. Partington was rejected as an expert
previously for not physically examining a patient. It is clear that this methodology
is generally accepted in the field of neuroradiology, as no physical examination is
required to interpret an MRI. Thus, we find that the trial court did not abuse its
discretion in accepting Dr. Partington as an expert witness in his field of
neuroradiology. We do not find merit in this assignment of error.
CONCLUSION
We have noted in the assignment of error number two that the use of
Fogleman‟s trial deposition in lieu of his live testimony was in error. When
appropriate, appellate courts render judgments on the merits when the trial court
has made a consequential but erroneous ruling on the exclusion or admission of
evidence. Builliard v. New Orleans Terminal Co., 171 So. 78 (1936). See also
Gonzales v. Xerox, 320 So.2d 163 (La.1975) and cases cited therein.
Therefore, “[w]here a finding of fact is interdicted because of some legal
error implicit in the fact finding process or when a mistake of law forecloses any
finding of fact, and where the record is otherwise complete, the appellate court
should, if it can, render judgment on the record.” Ragas v. Argonaut Sw. Ins. Co.,
388 So.2d 707, 708 (La.1980). However, “[t]here are cases where the weight of
the evidence is so nearly equal a firsthand view of witnesses is essential to a fair
resolution of the issues.” Id. “The appellate court must itself decide whether the
record is such that the court can fairly find a preponderance of the evidence from
13 the cold record. Where a view of the witnesses is essential to a fair resolution of
conflicting evidence, the case should be remanded for a new trial.” Id.
In applying this standard, it is clear that the instant case is one in which it
would be inappropriate for adjudication by an appellate court. As such, remand for
a trial not inconsistent with this evidentiary holding is appropriate in light of our
findings. We reverse the trial court‟s decision to allow Fogleman to submit a
deposition in lieu of his live testimony.
DECREE
Fogleman was not unavailable as required for use of a deposition by
La.Code Civ.P. art. 1450, given that he made an insufficient showing of
unavailability. The trial court abused its discretion in finding otherwise. Thus, he
should not have been permitted to use a trial deposition in lieu of his live
testimony. Given that the weight of evidence is so nearly equal that firsthand view
of witnesses is essential to a fair resolution of the issues, the case is not appropriate
for appellate adjudication. We reverse the trial court‟s decision to allow Fogleman
to submit his deposition in lieu of his live testimony and remand the matter to the
trial court for results not inconsistent herewith.
Costs of this appeal are assessed to Fogleman.
14 NUMBER 12-870
COURT OF APPEAL, THIRD CIRCUIT
STATE OF LOUISIANA
JACE FOGLEMAN, et al
CONERY, J. concurs and assigns reasons.
I concur with the majority on the record as it is presently constituted. For
the reasons set forth in the opinion, I agree that the defendant has not met his
burden of proving a legally acceptable reason for his client’s absence at trial and
therefore the defendant’s deposition should not have been admitted. The issue of
credibility is crucial in this case and it is necessary, absent exceptional
circumstances, that the defendant be present for in person testimony and for the
defendant’s cross examination in the presence of the jury. A key issue in the case
was the location of plaintiff’s vehicle when defendant pulled out of the parking lot
onto Johnston Street. The plaintiff had the right to cross examine the defendant
on this and other key issues in the presence of the jury so that the jury could
properly perform its duty to weigh witness credibility and find the facts.
Voluntary absence on the part of the defendant, especially in a jury case, should
not be excused absent special and exceptional circumstances not proven by the
defendant on the record of this case.