NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
2020 CA 0428
SHELIA HILLYARD
VERSUS
HARRY CORNELIUS, SHELTER MUTUAL INSURANCE COMPANY, AND NATIONAL GENERAL ASSURANCE COMPANY
Judgment rendered MAR 2 5 2021
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. C647256, Sec. 27
The Honorable Trudy M. White, Judge Presiding
Scott M. Emonet Attorneys for Plaintiff/Appellant Philip J. House Shelia Hillyard Baton Rouge, Louisiana
Brent E. Kinchen Attorneys for Defendants/ Appellees Gregory P. Aycock Harry Cornelius & Shelter Mutual Kolby P. Marchand Insurance Company Baton Rouge, Louisiana
Peter M. Donovan Attorney for Defendant/Appellee Metairie, Louisiana National General Assurance Company
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ. HOLDRIDGE, J.
In this personal injury action, plaintiff, Shelia Hillyard, appeals a judgment
entered in accordance with a jury verdict that dismissed her lawsuit after the jury
found she failed to prove the causation element of her claim. We affirm.
BACKGROUND
On April 30, 2015, Ms. Hillyard was driving a Pontiac G6 on Liberty Road
in East Baton Rouge Parish, Louisiana, when a pick-up truck, operated by Harry
Cornelius, rear- ended her vehicle. Ms. Hillyard' s vehicle was insured by National
General Assurance Company (National General); Mr. Cornelius' truck was insured
by Shelter Mutual Insurance Company ( Shelter). Ms. Hillyard filed this personal
injury lawsuit on April 4, 2016, against Mr. Cornelius and Shelter ( collectively
referred to as " Shelter"), and National General. In her petition, Ms. Hillyard
alleged that as a result of the April 30, 2015 rear -end collision, she sustained
injuries to her back, right foot, right leg, right hip, and left knee. She sought to
recover damages for her physical and mental pain and suffering, medical expenses,
loss of enjoyment of life, and lost wages.
In its answer, Shelter admitted that " an extremely minor tap" occurred on
April 30, 2015. Shelter alleged that Ms. Hillyard contributed to the accident by
stopping in a sudden and unexpected manner, which caused the minor tap.
On July 13, 2016, Ms. Hillyard filed a motion for a status conference for the
purpose of selecting a trial date and setting discovery cutoff dates. On September
15, 2016, the trial court issued a Case Management Scheduling Order in chambers
which ordered that: ( 1) discovery be completed by March 31, 2017; ( 2) all parties
exchange pre- trial inserts by April 15, 2017; and ( 3) the parties file a joint pre- trial
order by April 30, 2017.
2 On April 6, 2017, Shelter filed a " Notice of Deposition for Production of
Medical Records Only and Subpoena Duces Tecum" directed to the medical
custodians for Dr. Stephen Speeg and Baton Rouge Orthopedic to obtain Ms.
Hillyard' s medical records. On April 11 2017, Shelter' s attorney filed an affidavit
in the record in which he attested that Ms. Hillyard' s attorney had been furnished
with a copy of the notice seven days prior to the issuance of the subpoena duces
tecum, and no response had been received, thereby compelling the records
custodians for the listed medical providers to produce all medical records regarding
Ms. Hillyard.
On April 28, 2017, the parties' pre- trial order was filed into the record.
Therein, Shelter specifically identified Dr. Speeg as a witness it may call and
further indicated that it may introduce any medical records pertaining to Ms.
Hillyard' s prior condition as exhibits at the trial.
On April 17, 2017, Ms. Hillyard dismissed National General from the
litigation. The trial against Shelter was initially scheduled to begin on May 29,
2018. Ms. Hillyard filed a motion to continue the trial, noting that counsel had
agreed to mediation, and there was no objection by the defense to the continuance.
The trial court granted the motion for continuance on May 24, 2018, and continued
the trial without date.
On May 1, 2018, Shelter took the deposition of Dr. Speeg, Ms. Hillyard' s
primary care physician, who treated Ms. Hillyard from 1994 through the end of
2017. During the deposition, Dr. Speeg was tendered as an expert in internal
medicine; no objection was made by Ms. Hillyard' s attorney at that time. Dr.
Speeg' s treatment of Ms. Hillyard for numerous conditions, including back pain
prior to the subject accident, was discussed at length during the deposition, and
excerpts of medical records discussed during the deposition were offered into
3 evidence as " Exhibit # 3" and attached to the deposition. Ms. Hillyard' s attorney
did not object to the medical records, responding, " that' s fine." Ms. Hillyard' s
attorney also questioned Dr. Speeg about his treatment of Ms. Hillyard during the
deposition.
On July 31, 2018, the trial court set the trial to begin on September 23, 2019.
On October 19, 2018, the first deposition of Dr. Scott Nyboer, who treated Ms.
Hillyard for back pain following the accident and the only expert to testify on her
behalf, was taken. By letter dated April 24, 2019, Ms. Hillyard' s attorney sent a
letter to Dr. Nyboer asking for a clarification of Dr. Nyboer' s deposition testimony
regarding epidural steroid injections he had given to Ms. Hillyard and which of
those injections were related to the April 30, 2015 car accident. On September 13,
2019, Dr. Nyboer testified by video in lieu of his trial testimony.
On August 23, 2019, Ms. Hillyard filed a motion in limine seeking to
exclude all evidence, statements, expert reports, IME reports, and/ or records
submitted by the defense counsel regarding any and all experts and/ or physicians
pertaining to Ms. Hillyard that were obtained after the deadlines established in the
trial court' s Case Management Scheduling Order, and to exclude any argument
from defense counsel regarding the same. Ms. Hillyard argued that such evidence
obtained outside of that schedule was beyond the deadlines provided by law and
should be deemed inadmissible.
In opposition to the motion in limine regarding medical records, Shelter
submitted that Ms. Hillyard' s " vague" request did not specify any evidence Shelter
failed to produce prior to the discovery cutoff date. It also stated that Ms. Hillyard
had been provided with all pre -accident and post -accident medical records
obtained throughout discovery prior to that date. Finally, Shelter asked the court to
0 exclude any of Ms. Hillyard' s evidence that had not been provided to Shelter prior
to the discovery cutoff date or identified in the scheduling order.
Jury selection began on September 23, 2019, following which both sides
presented their opening arguments. On the second day of trial, the jury was read a
stipulation that medical records and bills would be submitted from various medical
providers. While the defense stipulated as to the authenticity of those medical
records, it noted there was a discrepancy regarding the amount of the medical bills
for one of the providers. The jury was also informed that Mr. Cornelius passed
away on December 9, 2017. The parties stipulated that Mr. Cornelius rear- ended
Ms. Hillyard' s vehicle on April 30, 2015.
Prior to the start of trial on September 24, 2019, the parties offered their
exhibits. Ms. Hillyard offered into evidence Dr. Nyboer' s video deposition and
transcript of that deposition, along with medical records of other health care
providers. Shelter did not object to those exhibits initially. Shelter sought to
introduce the deposition testimony of Dr. Speeg, Dr. Speeg' s medical records,
photographs of Ms. Hillyard' s car, and pharmacy records. Ms. Hillyard' s attorney
objected to the introduction of all of Shelter' s evidence on the basis that " defense
counsel never answered my discovery, never produced records in discovery, never
submitted a pre- trial order, never submitted a list of witnesses or exhibits, never
shared exhibits with me." Ms. Hillyard' s attorney noted that there was a medical
record contained within Dr. Speeg' s medical records, which he had only seen the
previous day, from a different doctor (Dr. Boucree) with Ms. Hillyard' s name on it,
which contained a recommendation for back surgery. Ms. Hillyard' s attorney then
urged that the record actually referred to a different person, as many of the
notations thereon had no relation to Ms. Hillyard. Additionally, Ms. Hillyard' s
5 attorney objected to the deposition of Dr. Speeg on the basis that the defense did
not establish why Dr. Speeg was unavailable for trial.
In response, Shelter argued that it had Dr. Speeg' s records for a long time
and indicated that copies were made and immediately sent to Ms. Hillyard' s
attorney. Shelter' s attorney informed the trial court that Dr. Speeg was not
available for trial because he had prostate cancer and indicated he had a letter
documenting Dr. Speeg' s illness and his unavailability for trial. Ms. Hillyard' s
attorney responded that he was not saying that Dr. Speeg was not ill, but that he
wanted to see proof of the illness and had yet to see such proof. Shelter then
objected to the introduction of Dr. Nyboer' s deposition, urging that it was not
taken for trial purposes.
The trial court overruled all objections and allowed the introduction of Dr.
Speeg' s deposition and medical records into evidence, noting that the pre-trial
inserts established that Ms. Hillyard' s attorney had notice of this evidence. The
trial court further stressed that Ms. Hillyard would be given the opportunity to traverse the challenged medical record at trial. The trial court did not require the
defense to submit a letter documenting Dr. Speeg' s unavailability for trial.
Trial proceeded, with Ms. Hillyard' s case consisting of her testimony, the
testimony of her daughter, the deposition testimony of Dr. Nyboer, and the records
of various medical providers with whom Ms. Hillyard treated following the April
30, 2015 accident. Shelter' s case consisted of the deposition testimony of Dr.
Speeg, Dr. Speeg' s medical records, photographs of Ms. Hillyard' s vehicle
following the accident, and the records of various pharmacies.
Following the conclusion of the trial, the jury returned a verdict finding that
Mr. Cornelius was negligent and his negligence caused the April 30, 2015
accident. The jury further found that Ms. Hillyard was not at fault in causing the
on accident and assigned 100% fault to Mr. Cornelius. However, the jury concluded
that Ms. Hillyard did not prove by a preponderance of the evidence that she was
injured in the April 30, 2015 accident. In accordance with the jury' s finding that
there was no proof of causation of Ms. Hillyard' s injuries, the trial court dismissed
the lawsuit with prejudice by judgment dated October 12, 2019.
This appeal, taken by Ms. Hillyard, followed. In three assignments of error,
Ms. Hillyard argues that the trial court committed manifest and reversible error in:
1) failing to grant her motion in limine to exclude the erroneous, prejudicial, and
untimely obtained and supplied medical records and deposition obtained by Shelter
from Dr. Speeg; ( 2) failing to uphold the objections of her attorney to the
admission of defense exhibits; and ( 3) providing the jury with a verdict form that
obviously originated from Shelter and compressed the elements of her damages,
thereby prejudicing her.
EVIDENTIARY CHALLENGE
In her first and second assignments of error, Ms. Hillyard maintains that the
trial court committed manifest and reversible error in failing to grant her motion in
limine or sustain her evidentiary objections at trial, which sought to exclude the
deposition of Dr. Speeg and his medical records. Ms. Hillyard insists that this
evidence should have been excluded because Dr. Speeg' s deposition was taken
after the date set forth in the Case Management Scheduling Order for the
completion of discovery. She also contends that Shelter did not give Dr. Speeg' s
records to her attorney until the day prior to trial. Ms. Hillyard urges that she was
prejudiced by the introduction of Dr. Speeg' s medical records, because those
records contained a medical record from a different doctor ( Dr. Boucree) listing
her name and referencing pre- existing back issues, which was purportedly used by
the defense to show that she had had a previous back surgery, when it was clear
7 that the person referenced in the record was not in fact Ms. Hillyard. She also
argues that Dr. Speeg' s deposition was taken for discovery purposes only, and
Shelter did not justify its use at trial by providing proof of Dr. Speeg' s
unavailability to the trial court.
The record reflects that the Case Management Scheduling Order set by the
trial court required that discovery be completed by March 31, 2017. Dr. Speeg' s
deposition testimony was not taken until May 1, 2018, fourteen months after that
deadline. According to Ms. Hillyard, Dr. Speeg' s medical records were not
subpoenaed by defense counsel until April 6, 2017, also after the discovery
deadline. Even more egregious, she submits, is the fact that Shelter did not give
Dr. Speeg' s records to her attorney until the day prior to trial. Ms. Hillyard
maintains that Dr. Speeg' s deposition and medical records impacted the jury' s
assessment of her pre -accident back condition and whether she sustained lumbar
injuries in the instant accident. She insists that these exhibits questioned the
veracity of her testimony that she had no prior history of lumbar injuries, were
grossly prejudicial, confused the issues before the trial court, and misled the jury
into believing that she did not sustain lumbar injuries in the April 30, 2015
accident. Ms. Hillyard contends that because the medical records were not timely
subpoenaed or supplied and the deposition of Dr. Speeg was not taken until after
the discovery cutoff date, her attorney had no reason to believe that either would be
allowed into evidence at trial and did not even see the medical records until just
before the trial. She asks this court to find manifest and reversible error in the trial
court' s refusal to enforce its own scheduling order to her extreme prejudice and in
admitting the extremely prejudicial evidence. According to Ms. Hillyard, this case
presents a classic example of "trial by ambush." We disagree. A trial court has broad discretion in its evidentiary rulings and
its determination will not be overturned on appeal absent an abuse of that
discretion. Chiasson v. Louisiana Medical Mutual Insurance Company, 2019-
0617 ( La. App. 1St Cir. 6/ 18/ 20), 307 So. 3d 204, 208; Giavotella v. Mitchell,
2019- 0100 ( La. App. 1St Cir. 10/ 24/ 19), 289 So. 3d 1058, 1067, writ denied, 2019-
01855 ( La. 1/ 22/ 20), 291 So. 3d 1044. In refusing to exclude Dr. Speeg' s
deposition and medical records, the trial court stressed that Ms. Hillyard' s attorney
had notice of this evidence since April of 2017 when the parties submitted their
pre- trial inserts. The record amply supports the trial court' s conclusion that Ms.
Hillyard was on notice of the challenged evidence more than two years prior to the
start of trial. Ms. Hillyard failed to show that she was unfairly surprised or
prejudiced in any way by the introduction of the deposition testimony and medical
records of a physician who had treated her since 1994 for numerous ailments,
including back pain, prior to the April 30, 2015 accident.
Moreover, we note that Ms. Hillyard was given the opportunity to
demonstrate at trial, through the testimony of two witnesses, that she was not
actually the person referenced in Dr. Boucree' s medical record.' Therefore, we
find that Ms. Hillyard failed to prove that the inclusion of this document in Dr.
Speeg' s records prejudiced her at trial.
Louisiana Code of Civil Procedure article 1450 permits the admission of a
deposition at trial by any party if the court finds that the witness is unavailable for
trial. La. C. C. P. art. 1450A(3)( a). The determination of whether a witness is
unavailable is a preliminary question for the trial court. La. C. E. art. 104A;
Sullivan v. City of Baton Rouge, 2014- 0964 ( La. App. 1St Cir. 1/ 27/ 15), 170
So. 3d 186, 194. A court may consider otherwise inadmissible evidence in making
1 The trial court allowed Ms. Hillyard' s attorney wide latitude in questioning the witnesses to allow them to refute each and every allegation made in Dr. Boucree' s medical records. 9 this factual determination. Id. An attorney' s representations of his efforts to
locate a witness has been held sufficient to establish a witness' s unavailability.
See Ball v. Capital City Cornichon Corp., 2011- 1862 ( La. App. 1St Cir. 5/ 2/ 12),
2012 WL 1550545, * 3- 4, writ denied, 2012- 1448 ( La. 1/ 18/ 13), 107 So. 3d 623.
A trial court is vested with broad discretion in determining whether a
witness is unavailable within the meaning of Article 1450, and the trial court' s
decision to allow the use of deposition testimony at trial will not be disturbed in the
absence of an abuse of that broad discretion. Sullivan, 170 So. 3d at 194. In
admitting the deposition testimony of Dr. Speeg' s deposition testimony over Ms.
Hillyard' s objection, the trial court obviously found that Dr. Speeg was unavailable
to testify at trial due to illness. Further, Ms. Hillyard' s attorney was present at the
deposition and had the opportunity to question Dr. Speeg at that time. The trial did
not abuse its discretion in permitting Shelter to introduce the deposition testimony
of Dr. Speeg at trial.
Considering all of the circumstances of this case, we conclude that Ms.
Hillyard failed to demonstrate that the trial court erred in allowing the introduction
of Dr. Speeg' s deposition testimony and medical records into evidence. Therefore,
we find no merit in the first two assignments of error.
JURY VERDICT FORM
In her third assignment of error, Ms. Hillyard contends that the trial court
erroneously provided the jury with a " non- standard" jury verdict form that
obviously originated from the defense, lending the impression that the trial court
somehow favored the defense." She also contends that the form prejudiced her
case by compressing and generalizing her elements of damages, as the broad
categories of general damages denied the jury the ability to see, review, and reflect
on the various elements of damage that were compensable in this case.
10 Under the guidelines of La. C. C.P. art. 1812, a trial court has wide discretion
in determining and framing the issues to be posed as special interrogatories, and
absent an abuse of that discretion, a court will not set aside those determinations.
Schram v. Chaisson, 2003- 2307 ( La. App. 1St Cir. 9/ 17/ 04), 888 So. 2d 247, 251.
In reviewing a jury verdict form, this court employs a manifest error, abuse of
discretion test. Townes v. Liberty Mutual Insurance Company, 2009- 2110 ( La.
App. 1St Cir. 5/ 7/ 10), 41 So. 3d 520, 527. Jury interrogatories must fairly and
reasonably point out the issues to guide the jury in reaching an appropriate verdict.
Id. It is well settled that a verdict form may not be set aside unless the form is so
inadequate that the jury is precluded from reaching a verdict on correct law and
facts. Abney v. Smith, 2009- 0794 ( La. App. 1St Cir. 2/ 8/ 10), 35 So. 3d 279, 283,
writ denied, 2010- 0547 ( La. 5/ 7/ 10), 34 So. 3d 864. If the verdict form does not
adequately set forth the issues to be decided by the jury, such as omitting an
applicable essential legal principle, or is misleading or confusing, such
interrogatories may constitute reversible error. Id.
The record reflects that the trial court read the jury verdict form into the
record after the jury rendered its verdict. The form, as read by the trial court,
contained the following statement: " Now into court, through undersigned counsel
come the defendants, Harry Cornelius and Shelter Mutual Insurance Company,
respectfully submit the following jury interrogatories to be placed on the verdict
form." The first question on the jury verdict form asked whether Mr. Cornelius
was negligent and whether his negligence was the cause of the accident, to which
the jury answered, " Yes." The second question asked whether Ms. Hillyard was
negligent and whether her negligence was a cause of the accident, to which the jury
answered " No." The verdict form then asked the jury to assign a percentage of
fault; the jury assigned 100% fault to Mr. Cornelius and 0% fault to Ms. Hillyard.
11 The jury was then asked whether it found by a preponderance of the evidence that
Ms. Hillyard was injured in the April 30, 2015 accident, to which the jury
responded " No." The jury verdict form apprised the jury that if its answer was
no," to sign and date the verdict form. The trial court noted that the jury had
signed and dated the form.
Shelter admits that its name was left on the jury verdict form, but submits
that even if the jury did notice the inclusion of its name on the jury verdict form,
any error was harmless when considering the evidence as a whole.
After reviewing the record, we find that Ms. Hillyard failed to demonstrate
that the jury verdict form was so inadequate that it prevented the jury from
reaching a decision on the law and facts. We find that the reference to Shelter in
the heading of the jury verdict form was simply an oversight to which Ms. Hillyard
did not object, and which was in no way intended to sway the jury in favor of
Shelter. In fact, despite the reference to Shelter in the heading of the verdict form,
the jury found Shelter' s insured to be 100% at fault in causing the accident and
further found no fault on Ms. Hillyard' s part. The jury' s correct response to these
questions indicates that the jury understood both the law and its responsibility in
deciding the case. Apparently, the jury concluded that Ms. Hillyard was not
injured by the minor collision between her vehicle and Mr. Cornelius' vehicle.
After reviewing the entire record, we can only conclude that the jury' s causation
determination, which resulted from its weighing of all of the testimonial, medical,
and documentary evidence adduced at trial, was not manifestly erroneous. Further,
the jury verdict form did not lead the jury to reach a causation determination that is
not reasonably supported by the record, and we find no merit in this assignment of
error.
12 CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. All
costs of this appeal are assessed to plaintiff, Shelia Hillyard.
AFFIRMED.
13 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
HARRY CORNELIUS, SHELTER MUTUAL INSURANCE COMPANY, AND NATIONAL GENERAL ASSURANCE COMPANY
McDONALD, I., concurring.
I agree with the result reached by the majority but write separately regarding
the trial court's ruling as to the admissibility of Dr. Speeg' s deposition at trial based on
Shelter's counsel' s representation that Dr. Speeg was unavailable due to illness.
Determining a witness's unavailability is a preliminary question under La. C. E.
art. 104A. The trial court is not bound by the rules of evidence in making this
determination and may consider otherwise inadmissible evidence. See La. C. E. art.
104A; Folse v. Folse, 738 So. 2d 1040, 1039 ( La. 1999). As the majority notes, this
court has found an attorney's unsworn representations regarding his efforts to locate a
witness are sufficient to establish a witness' s unavailability. See Ball v. Capital City
Cornichon Corp., 11- 1862 ( La. App. 1 Cir. 5/ 2/ 12), 2012 WL 1550545, * 3- 4. I believe
the better practice, however, would be for the trial court to require the attorney to be
sworn in and to then have him testify under oath as to his witness's unavailability.
Accord Folse v. Folse, 98- 1976 ( La. 6/ 29/ 99), 738 So. 2d 1040, 1049 ( noting the trial
court took testimony to determine whether a witness was unavailable to testify); State
v. Sanderson, 49, 957 ( La. App. 2 Cir. 7/ 22/ 15), 174 So. 3d 149, 164 ( noting the trial
court accepted an investigator's testimony to determine the availability of a witness).