Alex Foster VS Fermin Molina Rosas, Prestige One Landscape and Farmers Insurance Exchange

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2012 CA 1218 f r ALEX FOSTER VERSUS FERMIN MOLINA ROSAS PRESTIGE ONE LANDSCAPE AND FARMERS INSURANCE EXCHANGE Judgment Rendered March 22 2013 Appealed from the First Twenty Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 2010 002824 The Honorable Zorraine M Waguespack Judge Presiding at kx k x9c k Michael J Remondet Jr Counsel for Plaintiff Appellant Lafayette LA Alex Foster Erik M Tadda Baton Rouge LA Jack E Truitt Covington LA Counsel for Defendants Appellees Fermin Molina Rosas Prestige One Landscape and Farmers Insurance Exchange BEFORE WHIPPLE C McCLENDON AND HIGGINBOTHAM JJ J t S C 1 ve Si Yi i I WHIPPLE C J Plaintiff Alex Foster appeals from a judgment of the trial court rendered in conformity with a jury verdict in favor of the defendants Fermin Molina s Rosas Prestige One Landscape and Farmers Insurance Exchange dismissing plaintifPs claims with prejudice and taxing plaintiff with expert fees and costs For the following reasons we affirm FACTS AND PROCEDURAL HISTORY On June 21 2010 plaintiff was involved in an automobile accident with Fermin Molina Rosas while traveling north on U Hwy 51 in Tangipahoa S Parish Rosas an employee of Prestige One Landscape Prestige was operating a company vehicle at the time of the accident After the accident plaintiff was transported to North Oaks Hospital by ambulance for treatment of injuries allegedly sustained in the accident Plaintiff was treated by an emergency room physician at North Oaks and sent home that night Plaintiff eventually underwent spinal surgery which he claims was necessitated by the injwies sustained in this accident On July 13 2010 plaintiff filed a petition for damages contending that the accident was caused solely by the negligence of Rosas The defendants answered plainriff petition contending that any damages sustained by plaintiff s were the result of s plaintiff comparative fault and or negligence The defendants further asserted the affirmative defense of no pay no play pursuant to LSA 32 S R 866 The matter proceeded to trial before a jury on August 16 2011 through August 19 2011 At the conclusion of trial the jury entered a verdict finding that the negligence of the defendants was not the proximate cause of plaintiff s 2 I damages A judgment conforming to the jury verdict was signed by the trial s court on September 19 2011 From this judgment plaintiff appeals contending that the trial court erred in accepting Charles Bain M and Dan Cliffe Ph as expert D D wiMesses without applying the proper Daubert analysis pursuant Kuhmo Foret to LSA art 1425 P C Fand LSA art 702 in allowing the introducrion E C of evidence and testimony of charges of misdemeanor crimes to attack the credibility of plaintiff and his brother Clarzeal Foster and in denying the introduction of evidence of future medical expenses DISCUSSION STANDARD OF REVIEW The decision to admit or exclude expert testimony is within the sound discretion of the trial court and its judgment will not be disturbed by an appellate court unless it is clearly erroneous Devall v Baton Rou Fire e Department 2407 La App l Cir 11 979 So 2d 500 503 0156 07 2 Because a finding of an evidentiary error may affect the applicable standard of review in that the appellate court must conduct a de novo review if the error is deemed to have interdicted the fact conclusions alleged evidentiary s finder errors are addressed first on appeal Devall v Baton Rouge Fire Department 979 So 2d at 502 If the trial court has abused its discretion in its evidentiary rulings such that the jury verdict is tainted by the errors the appellate court then conducts a de novo review See McLean v Hunter 495 So 2d 1298 1304 La 1986 However absent a prejudicial error of law this Court is not The jury verdict form completed by the jury does not appear in the appellate record Nonetheless the par do not dispute the jury verdict which according to the minute ies s entry and as shown in the trial transcript was read aloud in open court confirmed by the jury foreperson and made the judgment of the court by the September 19 2011 judgment of the trial wurt 3 required to review the appellate record de novo Rosell v ESCO 549 So 2d 840 844 n La 1989 2 With reference to the evidentiary challenges set forth on appeal by plaintiff this Court must consider whether the particular rulings complained of were erroneous and whether the errar prejudiced the defendant cause for s unless it does reversal is not warranted Brumfield v Guilmino 93 La 0366 App l Cir 3 633 So 2d 903 911 writ denied 94 La 5 94 11 0806 94 6 637 So 2d 1056 Moreover the party alleging error has the burden of showing the error was prejudicial to his case The determination to be made on appeal is whether the error when compared to the record in its entirety had a substantial effect on the outcome of the case Brumfield v Guilmino 633 So 2d at 911 DAUBERT CHALLENGES Assignment of Errors Numbers One and Two In these assignments plaintiff challenges the trial court acceptance of s Charles Bain M and Dan Cliffe Ph as expert witnesses herein D D contending that the trial court failed to conduct the proper Daubert analysis and pronounce the reasons far its ruling as required by LSA art 1425 P C F Daubert v Merrell Dow Phannaceuticals Inc 509 U 579 113 S Ct 2786 125 S L Ed 2d 469 1993 With 3 regard to plaintiff first contention that the trial court failed to conduct the s necessary Daubert analysis and failed to properly articulate its findings LSA art P C Fis 1425 relevant and provides as follows 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 determinarions by the court 2 The court shall hold a contradictory hearing and shall rule on the motion not later than thirty days priox 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 and 702 through 705 of the Louisiana A Code of Evidence For good cause shown the court may allow live testimony at the contradictory hearing 3 Ifthe ruling of the court is made aY the conclusion of the hearing the court sha11 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 4 ruling and provide written findings of fact conclusions of law and reasons for judgment not later than five days aftex 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 sarisfied for a person to tesrify under Articles 7o2 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 tesfify 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 70S of the Louisiana Code of Evidence 5 A ruling of the court pursuant to a heazing held in accordance with the provisions of this Paragraph shall be subject to appellate review as provided by law 6 Notwithstanding the time limitarions 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 priar 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 7 The provisions of this Paragraph shall not apply to testimony in an action for divorce or annulment of marriage or to a separation in a covenant marriage to a property partition or to an administration of a succession or to testimony in any incidental or ancillary proceedings or matters arising from such actions 8 All ox a portion of the court costs including reasonable expert witness fees and costs incurred when a motion is filed in accordance with this Paragraph may in the discretion of the court be assessed to the non party as prevailing taxable costs at the conclusion of the hearing on the motion As plaintiff correctly notes the factual basis for an expert opinion determines the s reliability of the testimony An unsupported opinion can offer no assistance to the fact finder and should not be admitted as expert testimony Canier v Citv of Amite 2008 1092 La App l Cir 26 So 3d 893 897 writ denied 2009 La 6 9 So 3d 09 13 0919 09 5 874 The trial court inquiry must be tied to the specific facts of the particular case As s stated above the abuse of discretion standazd applies to the trial court ultimate conclusion s as to whether to exclude expert wimess testimony and to the court decisions as to how to s determine reliability Brown v City of Madisonville 2007 La App lCir 11 2104 08 24 5 So 3d 874 881 writ denied 2008 La 2 1 So 3d 498 As the jurisprudence 2987 09 20 recognizes there is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application Only a question of the validity of the methodology employed brings Daubert into play MSOF Corporation v Exxon Co rporation 0988 2004 La App 1 Cir 12 934 So 2d 708 718 writ denied 2006 La OS 22 1669 06 6 10 938 So 2d 78 However if a trial court conducts no Daubert analysis of any kind the exclusion of the expert evidence without an evaluation of the relevant reliability factors s is legal error Arceneaux v Shaw Grouo Inc 2012 La App lCir 9 103 0135 12 24 So 3d 1086 1091 Nonetheless the analysis does not end there as the reviewing court still must determine on the entirety of the record whether or not such error was harmless i e whethex the testimonp was so inherently prejudicial as to interdict the ultimate verdict rendered See en Clement v Griffin 92 La App 4 Cir 634 So 2d 412 427 erally 1664 428 writs denied 94 94 94 94 94 94 La 1994 637 0717 0777 0789 0791 0799 0800 So 2d 478 479 5 In the instant case a hearing was held on August 15 2011 in response to trial pre motions in limine and for a Daubert hearing challenging Dr Bain s qualification and testimony as an expert in the field of biomechanics vehicle impact and injury causation analysis with a medical specialty and Dr Cliffe s testimony as an expert in the field of forensic economic evaluation At the conclusion of the hearing the trial court determined that it would accept Drs Bain and Cliffe as experts in the fields offered and allow their testimony to be presented at trial With reference to Dr Bain plaintiff complains on appeal that although Dr Bain has had some training in accident reconstruction his medical training and experience consists primarily of emergency medicine with some amount of family practice he has no active practice or patients and other than assisting has never performed spinal surgery or been qualified in the treatment of spinal disorders As such plaintiff contends that it was error for the trial court to allow Dr Bain to testify as an expert regarding the injury of causation s plaintiff medical injuries and condition where he has no experience or certification in orthopedic or neurologic medicine or spinal disorders other than his residency training which therefore renders his opinion improper as beyond his medical eand certification erience To 4 the extent that defendants contend on appeal that counsel for plaintiff failed to object to Dr Bain qualification as an expert we note that the trial transcript shows that s plaintifPs counsel did object to Dr Bain testimony when Dr Bain was tendered by the s defendants as an expert at trial The trial court overruled plaintifPs objection and accepted Dr Bain as an expert subject to plaintifYs objection Dr S Bain testified that he is employed by Biodynamic Research Corporation BDR a corporation of physicians and engineers who contract with clients to determine whether and how injuries are caused in a particular event Dr Bain explained that there are four basic components of the principles and methodology applied in their analyses of cases 1 accident xeconstruction 2 kinematics how bodies move 3 bio determining mechanical what type of forces applied to the person body through bio knowledge to s mechanical determine the effects of those forces and the type of injury pattems customarily seen as a result of those forces and 4 injury causation analysis reviewing medical records and 6 Instead in the instant matter on review we note that even if we agreed with plaintiff both that the trial court erred in failing to conduct the Daubert analysis required by LSA art 1425 and in allowing Dr Bain P C F s testimony as an expert on the causation of plaintiff sspinal injuries we would not disturb the jury verdict by conducting a de novo review given the s extensive and consistent testimony and evidence of record on the issue of causation from the IME Dr Paul Van Deventer as well as from plaintiff own s treating physician and orthopedic surgeon Dr David Wyatt all of which support the jury verdict on causation 6 The testimony provided by Dr Bain s was merely cumulative and corroborative of the evidence presented by other medical experts regarding causation and plaintiff medical condition all of s which support the jury findings and verdict s To the extent that there was diagnosed ox alleged injuries then comparing them to the potential of that event by applying the science of physics to determine whether the injuries wexe caused by such forces Dr Bain conceded that he had never examined plaintiff but claimed that the research and methodology in the biomechanics field is widely accepted to understand how people react to the application of forces and accelerations not only in the scientific community but within government academia and industry Dr Bain testified that he has conducted bio mechanic research over the past ten years and has published research in peer review venues One of the articles published by Dr Bain in a peer review journal was entitled Anal ical Model for Investigating Sideswipe Collisions Dr Bain opined that the instant case was basically a sideswipe case with some peculiarities to it Plaintiff alleges that Dr Bain testimony was improper in that other Louisiana s Courts have excluded so physician injury causation specifically excluding at least called three other BRC consultants including Dr Bain himself We note that some courts have allowed testimony in the field of biomechanics previously and other courts have refused to allow such testimony While we agree with plaintiff that Dr Bain expertise under the bxoad category of s biomechanics in pxedicting and opining whether spinal injuries will occur in particular collisions comes perilously close to usurping the province of the fact we save for finder another day the broader question of whether such testimony should be allowed at all absent some legislative detexmination regarding same is improper and should be excluded on this basis alone Although 6 Dr Wyatt initially testified that plaintifF inay have re his disc aggravated in tbe instant accident he conceded on cross examination that it was not until his deposition that he found out that another physician had previously recommended that plaintiff undergo an L4 lumbar surgery as a result of prior accidents in 2008 Dr Wyatt was further unaware 5 that plaintiff had been involved in another automobile accident on June 18 2010 only three days prior to the instant accident after which he presented at a hospital emergency room w ith complaints of neck and back pain Given these significant omissions by plaintiff in his medical history Dr Wyatt acknowledged that it was difficult to tell the jury exactly which accident caused plaintiffl s back pain 7 I discrepancy in the plaintiff testimony and that of the medical experts it was s I the job of the jury as the trier of fact to decide the question of causation based upon its credibility evaluations Thus on the record befare us we cannot conclude that the verdict rendered by the jury was so tainted by the testimony of Dr Bain as to warrant de novo review by this Court See Menard v Audubon Insurance Group 2006 La App 3 Cir 3 953 So 2d 187 191 1192 07 14 192 Moreover with reference to Dr Cliffe testimony although plaintiff s argues that in addition to the trial court failure to conduct the Daubert s analysis there is no factual basis for the amounts used by Dr Cliffe in calculating plaintifPs loss of earning capacity we note that even if we were to conclude the trial court erred in failing to conduct the proper Daubert analysis or that Dr Cliffe testimony was flawed because not based on facts in s evidence we would likewise be constrained to find the admission of same to be harmless error herein given the jury conclusion that the accident did not s cause the injuries at issue which precluded the jury from reaching the issue of damages Thus considering the recard as a whole and all of the evidence presented to the jury we find no showing of prejudicial error from any abuse of the trial s court discretion in allowing these experts to testify Accordingly we find no merit to these assignments of error 8 EVIDENCE OF MISDEMEANOR CHARGES TO ATTACK CREDIBILITY Assignment of Errors Numbers Three and Four Plaintiff contends that the trial court erred in allowing the defendants to introduce evidence of two pleas of no contest by Clarzeal Foster to certain misdemeanor charges to impeach his testimony At trial plaintiff called his brother Clarzeal Foster as a witness to testify as to the damage sustained by plaintifPs vehicle as a result of the instant accident specifically to contradict the testimony of Dr Bain concerning his appraisal of the condition of the car and areas of damage in rendering his ultimate opinion on causation Clarzeal testified that he had driven plaintiff s car and that it had been repaired since the subject accident herein On cross examination the defendants attacked Clarzeal credibility by attempting to s impeach his trial testimony with his prior deposition testimony wherein he denied having any criminal convictions Although he denied in the deposition that he had ever pled guilty or no contest to a crime Clarzeal admitted on cross examination at trial that he had in fact previously pled no contesY to the charges of theft of goods and simple battery When questioned about the conflicting answers Clarzeal explained that he thought he was only required to reveal prior felonies at the time of his deposition testimony At the outset we note that deposition tesrimony is generally allowed to impeach a witness with a prior inconsistent statement LSA art P C 1 A 1450 Moreover other extrinsic evidence including prior inconsistent statements and evidence contradicting the witness testimony is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is To the extent plaintifPs brief states that the trial court erred in ganting the defendants alleged reverse challenge to plaintifPs peremptory challenge Edmonson Batson of a prospective juror we note that plaintiff failed to assign error to same in this appeal Nonetheless we find no record support for these statements 9 substantially outweighed by the risks of undue consumption of time confusion of the issues ar unfair prejudice LSA art 607 E C 2 D To the eatent that plaintiff contends that evidence of these crimes was inadmissible under LSA art 609 in that neither of the two crimes pled to E C by Clarzeal are crimes of dishonesty or false statement we note that article 609 is not applicable in the present case given the purpose for which the evidence of Clarzeal pleas was offered Clarzeal was not questioned about his s prior convictions for the purpose of using the convictions but instead to demonstrate that he had in fact given a prior inconsistent statement when he previously denied having pled guilty or no contest to a crime Cf Busb Paul Insurance Company 95 La App l Cir 5 673 So 2d 320 2128 96 10 327 writ denied 96 La 9 679 So 2d 443 1519 96 20 Plaintiff next argues that Clarzeal subsequent admission of the prior s inconsistent statement rendered the evidence inadmissible under LSA art E C 613 We disagree In Williams v United Fire and Casualtv Company 594 So 2d 455 462 La App l Cir 1991 the plaintiff denied any prior criminal Louisiana B Code of Evidence article 609 entitled a credibility by evidence ttacking of conviction of crime in civil cases provides in part as follows A General civil rule For the purpose of attacking the credibility ofa witness in civil cases no evidence of the details of the crime of which he was convicted is admissible However evidence of the name of the crime of which he was convicted and the date of conviction is admissible if the crime 1 Was punishable by death or imprisonment in excess of six months under the law under which be was convicted and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or 2 Involved dishonesty or false statement regardless of the punishment Louisiana 9 Code of Evidence art 613 provides that Except as the interests ofjustice otherwise require extrinsic evidence of bias interest or corruption prior inconsistent statements conviction of crime or defects of capacity is admissible after the proponent has first fairly directed the wimess attention to the statement act or matter alleged and the witness has been given the opportunity to admit the fact and has failed distinctly to do so 10 convictions at his deposition when plaintiff had actually been convicted of a misdemeanor marijuana possession charge and a misdemeanor improper telephone communications charge The trial court ruled that evidence of s plaintiff false deposition statements was admissible as evidence of character and credibility Williams v United Fire and Casualtv Com 594 So 2d at any 463 462 On review this Court affirmed noting plaintiff denial of the two s misdemeanor convictions under oath at his deposition and his conflicting statement at trial clearly reflect the plaintiff credibility Williams v United s Fire and Casualtv Com 594 So 2d at 462 As this Court noted therein any Although at trial the plaintiff truthfully admitted his misdemeanor convictions t theory of attack by prior he inconsistent statements is not based on the assumption that the present testimony is false and the former statement true but rather upon the notion that talking one way on the stand and another way previously is blowing hot and cold and raises a doubt as to the truthfulness of both statements C McCormick McCormick on Evidence 34 at 74 3rd ed 1984 The evidence of plaintiffs statements concerning possession of marijuana and improper telephone communications convictions was used to show that the plaintiff made prior inconsistent statements and that the statement made at the deposition was false Therefore evidence of the plaintiffs statements concerning the misdemeanor convictions that occurred prior to the deposition and were denied by plaintiff in the deposition were clearly admissible under LSA art 607 D E C 2 Williams v United Fire and Casuai Com any 594 So 2d at 462 463 Accordingly we agree with defendants that pursuant to the above statutes and jurisprudence the eliciting of evidence of Clarzeal plea agreements was s properly allowed by the trial court to impeach Clarzeal testimony with his s inconsistent statement Plaintiff next contends that he was prejudiced when testimony of s plaintiff prior pleas of no contesP to marijuana possession charges was discussed in the testimony of vocational rehabilitation counselor Nancy Favoloro despite the trial court prior ruling on a motion in limine that such s evidence would not be allowed ll During the examination of Ms Favaloro by defense counsel the following exchange occurred You reviewed Ms Chalfin report in this case I s Q think you said A Yes sir Q Did you see where she commented that Mr Foster had been terminated from some jobs for illegal drug use A Yes Q Can that affect future employability A It can Q her report What was the specific drug that she commented on in A I don lrnow if she named the drug in that report t Q I think it was marijuana if you remember A Yeah Well he pled guilty to possession But yes People she just said positive drug screen in 2007 that he was let go to noncompliance with that policy Q And do employers go back and look at that kind of stuff in terms of whether or not they going to employ someone re in the future A Some do Q Okay And are employers free to refuse to employ someone if they have that on their record A They are Q s There no disability act ar anything that precludes someone from not hiring someone ifthey tested positive far drugs is that correct A For that or other reasons We first note that counsel for plaintiff failed to timely object to this line of questioning during defense counsel direct examination However upon the s Stephanie 10 Chalfin was plaintiffls vocational rehabilitation expert 12 tender of the witness by the defense at the conclusion of direct examination a sidebar conference was held by the trial court wherein the plaintiff requested that a mistrial be granted The defense argued that the trial court order on the s motion in limine was that the conviction itself was not admissible and that Ms s Favaloro admission was not solicited in that she was merely commenting on information that was provided in the plaintif expert report The trial court ss denied plaintifPs motion for mistrial and admonished the jury as follows I will caution the jury and advise the jury to disregard any evidence that was presented relative to marijuana Considering the cautionary instructions issued by the trial court herein we find any error that occurred as a result of the comments of Ms Favaloro to be harmless These assignments lack merit EVIDENCE OF FUTURE MEDICAL EXPENSES Assignment ofError Number Five Plaintiff contends that the trial court erred in refusing to allow the introduction of evidence of plaintif future medical expenses through the s testimony ofplaintiff orthopedic surgeon Dr David Wyatt s Defendants counter that they were only presented with estimates of future surgical expenses from plaintiff at the eleventh hour on Sunday the day befare trial commenced on Monday As such defendants contend that the admission of such evidence would have been extremely prejudicial and would deprive them the opportunity to respond to or explore this evidence through discovery Defendants note that in his deposition Dr Wyatt had testified that the only way he would perform a second surgery on plaintiff was if plaintiff went to physical therapy and that there was absolutely no evidence that plaintiff had attended physical therapy in the interim 13 Thus defendants contend the exclusion of evidence was proper as there was no certainty that a future surgery would even be recommended A trial court has great discretion in conducting a trial and in determining the admissibility of testimony and evidence Palace Properties L v C Sizeler Hammond Sauare Limited Partners 2001 La App 1 Cir 2812 02 30 12 839 So 2d 82 91 writ denied 2003 La 4 840 So 2d 0306 03 1219 Moreover an award offuture medical expenses is justified where there is medical testimony that such are indicated and where the medical evidence establishes that plaintiff more probable than not will be required to incur such expenses Muller v Colony Insurance Company 2010 La App l Cir 0688 10 9 12 57 So 3d 341 353 writ denied 2011 La 2 58 So 3d 0092 11 25 459 Considering the tardiness of plaintiff production of this evidence alone s we find no abuse of the trial court great discretion in excluding the s introduction ofplainrifPs future surgery esrimates at ri i We likewise find no merit to this assignment of error CONCLUSION For the above and foregoing reasons the September 19 2011 judgment of the trial court rendered in conformity with the jury verdict is hereby s affirmed Costs of this appeal are assessed to the plaintiff Alex appellant Foster AFFIRMED 14 STATE OF LOUESYANA COURT OF APPEAL FIRST CIRCUIT 2012 CA 1218 ALEX FOSTER VERSUS I FERMIN MOLINA ROSAS PRESTIGE ONE LANDSCAPE AND FARMERS INSURANCE EXCHANGE McCLENDON J concurs and assigns reasons Even if I were to find that legal error interdicted the fact finding process thus applying a de nouo standard of review I would reach the same result as that reached by the majority Accordingly I concur with the s majority opinion

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