Thomas Lavigne v. Allied Shipyard, Inc., Ronald L. Callais, the Gray Insurance Company, Inc., D/B/A Gray & Company, Inc., Anne Paige Lowenburg, and Progressive Insurance Company

THOMAS LAVIGNE * NO. 2018-CA-0066

VERSUS *
COURT OF APPEAL
ALLIED SHIPYARD, INC., *
RONALD L. CALLAIS, THE FOURTH CIRCUIT
GRAY INSURANCE *
COMPANY, INC., D/B/A GRAY STATE OF LOUISIANA
& COMPANY, INC., ANNE *******
PAIGE LOWENBURG, AND
PROGRESSIVE INSURANCE
COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

THOMAS LAVIGNE NO. 2018-CA-1077 WITH:
CONSOLIDATED

VERSUS NO. 2018-CA-1077

ALLIED SHIPYARD, INC.,
RONALD L. CALLAIS, THE
GRAY INSURANCE COMPANY,
INC., D/B/A GRAY & COMPANY,
INC., ANNE PAIGE
LOWENBURG, AND
PROGRESSIVE INSURANCE
COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2013-03795, DIVISION “M”
Honorable Paulette R. Irons, Judge
******
Judge Dale N. Atkins
******

(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge
Dale N. Atkins)

James M. Williams
Erin B. Rigsby
Inemesit U. O'Boyle
CHEHARDY SHERMAN WILLIAMS MURRAY RECILE STAKELUM &
HAYES, LLP
One Galleria Boulevard, Suite 1100
Metairie, LA 70001

Robert E. Jones, IV
JONES & WILLIAMS, LLC
7544 Daniel Drive
New Orleans, LA 70127

COUNSEL FOR PLAINTIFF/APPELLEE

S. Daniel Meeks
Phyllis E. Glazer
Kristen E. Meeks
MEEKS & ASSOCIATES, LLC
3401 West Esplanade Ave. South, Suite 3
Metairie, LA 70002

COUNSEL FOR DEFENDANTS/APPELLANTS

AFFIRMED

JANUARY 15, 2020

This is a tort case involving a three-vehicle collision. This appeal arises from

the trial court’s judgment awarding Appellee, Thomas Lavigne, damages against

Gray Insurance Company (“Gray Insurance”) and Ronald Callais (collectively, the

“Appellants”). Gray Insurance also appeals the trial court’s denial of their motion

to disqualify Mr. Lavigne’s counsel. For the reasons that follow, we affirm.

FACTS

On the afternoon of April 22, 2012, Mr. Thomas Lavigne was involved in a

motor vehicle collision with Ronald Callais and Anne Lowenburg at the

intersection of Magazine and Delachaise Streets in New Orleans, Louisiana. Mr.

Lavigne was traveling toward downtown and was stopped in the eastbound lane on

Magazine Street at the intersection of Delachaise Street, leaving space between his

car and the car in front of him to allow traffic to pass on Delachaise Street. Ms.

Lowenburg turned right from Louisiana Avenue onto Magazine Street headed

westbound, and accelerated to approximately fifteen to twenty miles per hour. Mr.

Callais was on Delachaise Street going northbound attempting to make a left turn

onto Magazine Street. He inched across the eastbound lane in front of Mr.

Lavigne’s vehicle and struck Ms. Lowenburg’s vehicle on the driver’s side door as

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she passed the intersection on Delachaise Street while traveling in the westbound

lane on Magazine Street. Ms. Lowenburg then lost control of her vehicle and

veered left, striking Mr. Lavigne’s vehicle.

Before the accident, Mr. Lavigne was employed as the dean of students at

Marrero Middle School, making approximately $72,000 per year. After the

accident, Mr. Lavigne suffered a great deal of pain. Feeling that he could no longer

physically perform the duties of his job, Mr. Lavigne accepted a job as an assistant

college football coach at Arkansas Baptist College in Little Rock, Arkansas,

making approximately $55,000 per year. Mr. Lavigne also sought medical

treatment from multiple physicians. He was diagnosed with, among other things,

herniated discs. Both of Mr. Lavigne’s treating physicians, Dr. Bradley

Bartholomew and Dr. Rand Voorhies, concluded that Mr. Lavigne would need to

undergo back or neck surgery to treat his injuries1.

PROCEDURAL BACKGROUND

On April 19, 2013, Mr. Lavigne filed a petition for damages in Orleans

Parish Civil District Court. He named the following defendants: Mr. Callais; Ms.

Lowenburg; Allied Shipyard, Inc. (“Allied”) (Mr. Callais’ employer and the owner

of the vehicle he was driving), Gray Insurance (Allied’s motor vehicle insurance

provider), and Progressive Insurance Company (“Progressive”) (Ms. Lowenburg’s

motor vehicle insurance provider).

On December 10, 2015, Mr. Lavigne filed a witness list, naming, among

others, the following witnesses: (1) Dr. Shelly Savant, whom Mr. Lavigne

identified as an expert life care planner; (2) Dr. Jeremy Cummings, whom Mr.

Lavigne identified as an expert in accident reconstruction and biomechanical

1
The physicians recommended different procedures for Mr. Lavigne.

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engineering; (3) Dr. Cornelius Gorman, whom Mr. Lavigne identified as a medical

cost expert; (4) Joyce Beckwith, whom Mr. Lavigne identified as an expert in

vocational rehabilitation; and (5) Dr. Bartholomew, one of Mr. Lavigne’s treating

physicians.

On March 9, 2016, the Appellants filed pretrial motions challenging the

expert testimony and methodologies of Dr. Savant, Dr. Gorman, Ms. Beckwith,

and Dr. Cummings (the “Daubert Motions”). On August 31, 2017, a hearing on the

Daubert motions was held for Dr. Savant, Dr. Gorman, and Dr. Cummings. At the

conclusion of the hearing, the trial court held that Dr. Savant, Dr. Gorman, and Dr.

Cummings2 could testify as experts in the fields of life care planning, vocational

rehabilitation and medical costs, and accident reconstruction and biomechanical

engineering, respectively.

On January 26, 2017, eight months before trial, Mr. Lavigne’s trial counsel

withdrew. James Williams (“Mr. Lavigne’s counsel”), a partner in Chehardy,

Sherman, Williams, Murray, Recile, Stakelum & Hayes, LLC (“CSW”), enrolled.

2
On appeal, Appellants assert that, at the conclusion of the Daubert hearing for Dr. Cummings
that began on August 31, 2017, the trial court ruled Dr. Cummings could not testify as an expert
in biomechanical engineering. Then, according to Appellants, after counsel for Mr. Lavigne held
an improper ex parte conversation with the law clerk for the trial court, a second “surprise”
hearing for Dr. Cummings was held on September 25, 2017, the first day of trial, and that this
hearing violates La. C.C.P. art. 1425 because the second hearing was held less than thirty days
prior to trial. Based on this Court’s review of the record, we do not find that there was a second
Daubert hearing held for Dr. Cummings; the hearing held on September 25, 2017 was merely a
continuation of the Daubert hearing for Dr. Cummings that began on August 31, 2017. At the
conclusion of the August 31, 2017 hearing, the trial court instructed Mr. Lavigne’s counsel to
schedule another date to present more evidence on Dr. Cummings’ methodology, to which
Appellants lodged no objection. Because there was no objection to the timing under La. C.C.P.
1425 for the continuation of the hearing—or indeed to the hearing beginning on August 31,
2017, which was also less than thirty days prior to trial—we find that Appellants waived their
ability to assert this issue on appeal.

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At that time, another partner at CSW, Charles O. Taylor, was representing Gray

Insurance in an unrelated matter.3

A two-week jury trial on the merits commenced on September 25, 2017, and

concluded on October 6, 2017.4 At the conclusion of trial, the jury found for Mr.

Lavigne, that Mr. Callais was one hundred percent at fault for the accident, that

Ms. Lowenburg was zero percent at fault, and awarded the following damages:

Past Medical Expenses: $23,117.54
Future Medical Expenses: $580,000.00
Past Lost Wages: $55,842.00
Loss of Earning Capacity/Future Wages $152,946.00
Past Physical Pain and Suffering: $400,000.00
Future Physical Pain and Suffering: $250,000.00
Past Mental Anguish: $300,000.00
Future Mental Anguish: $400,000.00
Past Loss of Enjoyment of Life: $200,000.00
Future Loss of Enjoyment of Life: $400,000.00
TOTAL: $2,761,905.54

On May 15, 2018, several months after trial, Gray Insurance filed a motion

to disqualify Mr. Lavigne’s trial counsel. Gray Insurance asserted that it had

learned after trial that, as a result of Mr. Lavigne’s counsel’s law partner’s

representation of Gray Insurance, Mr. Lavigne’s counsel had been burdened by a

conflict of interest. A hearing on the motion was held August 30, 2018. At the

hearing, Mr. Taylor provided an affidavit attesting: that when Mr. Lavigne’s

counsel enrolled as counsel for Mr. Lavigne, Mr. Taylor called Gray Insurance’s

Vice President of Legal Services; that Mr. Taylor informed Gray Insurance’s Vice

President of Legal Services of the conflict; that Mr. Taylor then asked Gray

3
The record reflects that Gray Insurance terminated CSW as its counsel in December 2017.
4
Prior to trial, the claims against Ms. Lowenburg and Progressive were dismissed with prejudice
after settlement. At the conclusion of Appellants’ case-in-chief, the trial court granted Allied’s
Motion for Directed Verdict, finding that no evidence had been presented to show liability and
dismissing all claims with prejudice. Therefore, at the time of jury deliberations, the only
remaining defendants were Mr. Callais and Gray Insurance.

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Insurance to waive the conflict; and that Gray Insurance orally agreed to do so. The

trial court denied the motion. From this ruling, as well as the jury verdict and

damages award in favor of Mr. Lavigne, Appellants now timely appeal.

DISCUSSION

Appellants’ assignments of error present the following five related issues: (1)

admission of expert testimony for Mr. Lavigne; (2) admission of expert testimony

of Mr. Lavigne’s treating physician, Dr. Bradley Bartholomew; (3) jury

instructions on comparative fault, future medical expenses, and past and future lost

wages; (4) prejudicial remarks by Mr. Lavigne’s counsel during trial; and (5)

disqualification of Mr. Lavigne’s counsel.5 We address each issue in turn.

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On appeal, the Appellants raise nine (9) assignments of error:

(1) The Trial Judge denied Defendants their comparative fault defense by erroneously
instructing the jury on the legal duties of motorists.

(2) The Trial Judge erred by allowing Shelly Savant to testify as an expert life care planner
despite finding that the methodology she employed when preparing the life care plan was
invalid.

(3) The Trial Judge violated La. C.C.P. art. 1425 and Daubert by failing to evaluate the
methodology employed by Plaintiff’s vocational rehabilitation expert and, instead, allowing Dr.
Cornelius Gorman to be substituted as a new expert on the eve of trial.

(4) The Trial Judge erred by sua sponte reconsidering her Daubert ruling on Dr. Cummings,
after an ex parte conversation between counsel for the Plaintiff and the Judge’s law clerk, and by
allowing Cummings to give new, never-before-disclosed opinions and invalid biomechanical
testimony at trial.

(5) The Trial Judge erred by allowing the Plaintiff to present evidence of an examination of
the Plaintiff by Dr. Bradley Bartholomew which occurred on the second day of trial despite that
the Plaintiff had not been seen or treated by Bartholomew in almost three years, and further erred
by allowing Dr. Savant to testify as to new opinions and conclusions she reached based on that
mid-trial examination and her subsequent discussions with Bartholomew.

(6) The legal errors in admission of expert testimony as well as erroneous jury instructions
interdicted the fact finding process such that the jury erred in awarding $580,000.00 in future
medical expenses to the Plaintiff.

(7) The legal errors in admission of the testimony of Dr. Gorman as well as erroneous jury
instructions interdicted the fact finding process such that the jury erred in awarding past lost
wages to a Plaintiff who had missed no work and future lost wages despite the absence of
medical testimony that the Plaintiff has a disability affecting his ability to earn wages.

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I. Admission of Expert Testimony of Dr. Savant, Dr. Gorman, and Dr.
Cummings

The assignments of error related to the expert testimony of Dr. Savant, Dr.

Gorman, Dr. Cummings, and Dr. Bartholomew pertain to evidentiary issues. “A

trial court's ruling on ... evidentiary issues will not be disturbed unless a clear abuse

of discretion is shown.” Jones v. Peyton Place, Inc., 1995-0574, pp. 11-12 (La.

App. 4 Cir. 5/22/96), 675 So.2d 754, 763; see also Sanford v. City of New Orleans,

2003-0883, p. 13 (La. App. 4 Cir. 1/21/04), 866 So.2d 882, 890; Tadlock v. Taylor,

2002-0712, p. 7 (La. App. 4 Cir. 9/24/03), 857 So.2d 20, 27. Importantly, an

assignment of error cannot be predicated upon a ruling admitting evidence unless

there is a timely objection to the evidence. See La. C.E. art. 103; Leard v.

Schenker, 2006-1116, p. 3 (La. 6/16/06), 931 So.2d 355, 357; Bush v. Winn-Dixie

of La., Inc., 573 So.2d 508, 513-514 (La. App. 4 Cir.1990).

The standard for determining whether a witness is qualified to testify in a

matter as an expert is governed by Daubert v. Merrill Dow Pharmaceuticals, Inc.,

509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), as adopted by the

Louisiana Supreme Court in State v. Foret, 628 So.2d 1116, 1121 (La. 1993). As

this Court observed in Hooper v. Travelers Ins. Co., 2010-1685 (La. App. 4 Cir.

9/28/11), 74 So.3d 1202, 1204-05, “Daubert set forth some non-exclusive factors

for courts to consider in making a determination as to whether

(8) The systematic inflammatory attacks on Gray Insurance led the jury to punish Gray
Insurance by awarding a conscience shocking amount in general damages that was based on
prejudice and not facts in evidence.

(9) Throughout trial, the law firm representing the Plaintiff was also representing Gray
Insurance despite the Rules of Professional Conduct prohibiting such concurrent conflicts of
interest. The Trial Judge erred in declining to disqualify the plaintiff’s counsel from further
representation of the Plaintiff in this matter and further erred in declining to require the
plaintiff’s counsel to bear its own costs incurred in prosecuting this case against its own client.

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an expert's testimony was relevant and reliable. Those factors include but are not

limited to: (1) the testability of the technique or scientific theory; (2) whether the

theory or technique has been subjected to peer review and publication; (3) the

known or potential rate of error; and (4) whether the technique had gained ‘general

acceptance.’” Review of a trial court’s decision to admit or exclude testimony from

a witness offered as an expert is reviewed under an abuse of discretion standard.

Id. at 1205; see also Cheairs v. State Dep't. of Transp. and Dev., 2003-0680 (La.

12/3/03), 861 So.2d 536.

Prior to the trial of this matter, Appellants filed a motion challenging the

expert testimony of Dr. Savant, Dr. Gorman, and Dr. Cummings. Appellants

argued that Dr. Savant failed to use accepted methodologies in preparing her life

care plans and, thus, should be prevented from offering expert testimony; that Dr.

Gorman did not participate substantively in preparing the vocational rehabilitation

report Mr. Lavigne sought to introduce at trial; and that Dr. Cummings employed

improper methodologies in coming to his expert conclusions about the effect of the

accident on Mr. Lavigne’s herniated discs.6

After the Daubert hearings, the trial court found that Mr. Lavigne’s

proposed experts Dr. Savant, Dr. Gorman, Dr. Cummings, and Dr. Bartholomew

met the Daubert standard, and ruled their testimony admissible at trial. The record

reflects that all of the experts were offered at trial by Mr. Lavigne without

6
Appellants did not challenge Dr. Cummings’ qualifications as a biomechanical engineer, only
his methodology used in reaching his conclusions.

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objection by Appellants.7 Appellants now re-urge their challenges to the expert

testimony of Dr. Savant, Dr. Gorman, and Dr. Cummings.

We review the trial court’s rulings on the admission of Mr. Lavigne’s

experts as interlocutory judgments, which are judgments on preliminary matters in

the course of an action and which do not determine the merits of the action. See La.

C.C.P. art. 1841; Maqubool v. Sewerage and Water Board of New Orleans, 2018-

0572, p. 3 (La. App. 4 Cir. 11/14/18), 259 So.3d 630, 632. On appeal, “[a]n

appellant is entitled to seek review of all adverse interlocutory judgments

prejudicial to them, in addition to the review of the final judgment when an

unrestricted appeal is taken.” Id., 2018-0572, p. 3, 259 So.3d at 632-3 (quoting

Orleans Parish School Board v. Lexington Insurance Company, 2011-1720, p. 10

(La. App. 4 Cir. 8/22/12), 99 So.3d 723, 729).

We find the assignments of error related to the expert testimony of Dr.

Savant, Dr. Gorman, and Dr. Cummings are without merit. The trial court did not

abuse its discretion in admitting the testimony.

Dr. Shelly Savant

Appellants complain that the trial court erred in admitting Dr. Savant’s

testimony for two reasons. First, Appellants argue, as they did pre-trial, that Dr.

Savant should not have been admitted as an expert in life care planning because

she utilized only one source—herself—in developing her life care plans for Mr.

Lavigne; that she overruled recommendations of other physicians in developing

her life care plans; and that she did not limit her life care plans to include only care

7
The record reflects that, on the third day of trial, Appellants objected during a conference with
the trial court while the trial was in recess to Dr. Gorman being called as an expert in vocational
rehabilitation. When Dr. Gorman was tendered by plaintiffs at trial as an expert in vocational
rehabilitation and medical costs, however, there was no objection or questioning by Appellants.

8

that was medically necessary. Appellants assert this did not meet accepted life-

care-planning methodologies. Second, Appellants argue that Dr. Savant testified

outside the scope of her expertise when she testified about the costs of future

medical procedures for Mr. Lavigne and about a previously-undisclosed telephone

conversation she had with Dr. Bartholomew, one of Mr. Lavigne’s treating

physicians, regarding the costs of Mr. Lavigne’s future medical procedures.

Appellants argue this testimony led to a jury award for future medical expenses

that was a “conscience-shocking, punitive verdict that was not reasonably

grounded in the evidence.” We find these arguments lack merit.

First, we find that the trial court did not abuse its discretion in finding the

methodologies used by Dr. Savant met accepted standards in the field of her

expertise in life care planning. The record reflects that, both at the Daubert

hearing, and at trial, Appellants presented the testimony of their own expert in life

care planning, Mr. Stanford McNabb. Mr. McNabb testified that it was the

recommended—but not the required— standard that life care plan experts consult

with other sources, such as treating physicians and other members of a patient’s

therapeutic team, in developing a life care plan for a patient. Indeed, Mr. McNabb

conceded that the life care plan he authored was also based on a single source and

involved no consultation with Mr. Lavigne’s treating physicians. Further, the

record reflects that Dr. Savant, in fact, did consult with Dr. Rand Voorhies, one of

Mr. Lavigne’s treating physicians and, later, with Dr. Bartholomew. Even if she

had not, we do not find that complying with required methodologies but not with

recommended methodologies amounts to a finding that Dr. Savant was improperly

admitted as an expert life care planner, especially in light of Mr. McNabb’s

methodology in forming his life care plan.

9

Additionally, although Appellants assert that Dr. Savant overruled the

recommendations of Mr. Lavigne’s physicians, we do not find that the trial court

abused its discretion in finding that her methodology meets Daubert. Dr. Savant

testified that she overruled recommendations either because, based on expected

practices, the recommendation was outdated due to the passage of time or because

the recommendation was made by a physician who was acting outside the scope of

his practice. Further, Dr. Savant testified at trial that she included in her life care

plan only those items which were medically necessary. That Appellants disagree

with this assessment does not render her expertise inadmissible under Daubert.

Therefore, we find that the trial court did not abuse its discretion in admitting Dr.

Savant as an expert in life care planning.

Second, we find that the trial court did not abuse its discretion in not limiting

Dr. Savant’s testimony about the costs of Mr. Lavigne’s future medical procedures

and about a previously-undisclosed telephone call she had with Dr. Bartholomew

regarding same. Appellants failed to object at trial to this questioning, other than

raising an objection to hearsay. Therefore, the issue is not preserved for appeal on

their argument of lack of disclosure. Everhardt v. Louisiana Dep’t of Transp. &

Dev., 2007-0981, p. 11, (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1046.

(“[F]ailing to raise an objection to…testimony at trial, [Appellants] effectively

waived any objections [they] might otherwise have had as to…the admissibility

of…expert testimony”).

Further, Dr. Savant’s testimony was elicited after the testimony of Dr.

Voorhies, who testified regarding the costs of future medical procedures for Mr.

Lavigne. Dr. Savant’s testimony was limited to the statement that Dr.

Bartholomew, along with Dr. Voorhies, agreed with the costs contained in her life

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care plan after both doctors had reviewed it. Finally, Dr. Savant was clear that

while her life care plan included costs of future medical care, she did not compile

that information—that was Dr. Gorman, who also provided testimony regarding

the costs of the medical care needed for Mr. Lavigne. Therefore, even if Dr.

Savant’s testimony on future medical care costs exceeded her field of expertise,

based on the totality of the record before us, we find that that testimony alone was

harmless and did not affect the outcome of the case or, as Appellants contend, was

the sole cause of the jury’s verdict on future medical costs. See Buckbee v. United

Gas Pipe Line Co. Inc., 561 So. 2d 76, 85 (La. 1990) (“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,’” quoting 5 Am.Jur.2d, Appeal and Error § 776 (1962)).

Dr. Cornelius Gorman

Appellants argue that Dr. Gorman’s testimony should have been excluded,

or at least limited, for several reasons. First, they note that while Dr. Gorman was

offered as a vocational rehabilitation expert in trial, he was not originally identified

as such by Mr. Lavigne but was instead identified as a “medical cost expert,”

intended to testify about the prices of medical care contained in the life care plan

prepared by Dr. Savant. Instead, according to Appellants, the vocational

rehabilitation expert identified by Mr. Lavigne (and who authored the report for

Mr. Lavigne) was Ms. Beckwith, Dr. Gorman’s colleague, who testified at a pre-

trial deposition that Dr. Gorman did not provide any substance for the vocational

rehabilitation report. According to Ms. Beckwith, Dr. Gorman merely served as an

administrative support supervisor who checked grammar and spelling errors before

the report was released. Appellants argue they were “ambushed” by Dr. Gorman’s

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surprise vocational rehabilitation testimony at trial and were deprived of the ability

to discover what methodology and facts Dr. Gorman used in forming his opinions.

Appellants note that they did not depose Dr. Gorman prior to trial because they

relied on Mr. Lavigne’s representation that Dr. Gorman was retired and living in

Texas.

Second, Appellants argue Dr. Gorman’s testimony should have been limited

because he was allowed to testify about matters beyond what was contained in Ms.

Beckwith’s report, including about a phone call he had with Mr. Lavigne—which

was not previously disclosed to Appellants—and to the conclusions he reached as a

result of that phone call. Third, Appellants argue that Dr. Gorman testified outside

the scope of the vocational rehabilitation report when he testified about the

plaintiff’s ability to perform the duties of the job he held when the accident

occurred or the duties of the job he held at the time of trial, opinions which were

also not contained in Ms. Beckwith’s report.

Appellants’ contention that they were surprised by Dr. Gorman’s testimony

as an expert in vocational rehabilitation and were deprived of the ability to depose

him prior to his testifying at trial is not supported by the record. The record reflects

that, as early as December 10, 2015—almost two years before trial commenced—

Appellants were notified that Mr. Lavigne would call Dr. Gorman as an expert

witness in trial because he was so-named—albeit as a medical cost expert—by Mr.

Lavigne in his pre-trial witness list. Additionally, the vocational rehabilitation

report reflects that Dr. Gorman signed the report in addition to Ms. Beckwith,

giving Appellants notice that he participated in some way in authoring it and

indicating that he may be called as an expert in vocational rehabilitation, as well.

Appellants were also notified that Dr. Gorman would be called as an expert in

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vocational rehabilitation in addition to being called as an expert in medical costs on

August 31, 2017, at the Daubert hearing for Dr. Gorman. Any doubt Appellants

may have had about whether Dr. Gorman would be called as an expert in

vocational rehabilitation was resolved by the Joint Pre-Trial Memorandum filed on

September 15, 2017, ten days prior to the commencement of trial. The

Memorandum was authored and signed by both Appellants and counsel for Mr.

Lavigne, and it unequivocally names Dr. Gorman as an expert to be called by Mr.

Lavigne in the field of vocational rehabilitation. Therefore, we do not find the trial

court abused its discretion in not finding Dr. Gorman’s testimony in vocational

rehabilitation was a surprise to Appellants.

Neither do we find that the trial court abused its discretion in finding

Appellants had the ability to conduct discovery on Dr. Gorman’s methodologies

and expert conclusions. The record reflects that Appellants were aware, at a

minimum, close to two years prior to trial that Dr. Gorman would testify as an

expert in the trial of this matter. That he was listed as an expert in a different field

than that which he ultimately testified in is of no moment to whether Appellants

had the opportunity to depose Dr. Gorman. In addition to having notice of Dr.

Gorman’s proposed expert testimony for two years prior to trial, the record reflects

that Appellants were also given the opportunity to depose Dr. Gorman at the

August 31, 2017 hearing and expressly waived that opportunity.

Finally, we find that, based on the foregoing and an evaluation of the record

on Dr. Gorman’s expertise and testimony, it was not an abuse of the trial court’s

discretion in allowing Dr. Gorman’s testimony. Prior to trial, Appellants did not

challenge Dr. Gorman’s credentials or state specific grounds for challenging his

methodologies and conclusions in the vocational rehabilitation report such that his

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expert testimony would not be admissible under Daubert. They likewise do not

raise any specific grounds on appeal that Dr. Gorman’s testimony is inadmissible

under Daubert. At trial, Dr. Gorman testified to his extensive educational and

experiential background in the area of vocational rehabilitation, including that he

had been working and qualified to give expert testimony in court in that field since

1974. We thus find that the trial court’s admission of his testimony to be

compatible the requirements of Daubert and not an abuse of discretion.

Likewise, the trial court did not abuse its discretion in not limiting Dr.

Gorman’s testimony, including not limiting testimony about a previously-

undisclosed phone call Dr. Gorman had with Mr. Lavigne, the conclusions he

formed therefrom, and other testimony about Mr. Lavigne’s ability to perform his

job duties. The complained-of phone call to Mr. Lavigne was one that Dr. Gorman

characterized as a confirmation of the statements Mr. Lavigne made to Ms.

Beckwith, in preparation of the vocational rehabilitation report. Although

Appellants assert that this phone call was previously undisclosed, had Appellants

deposed Dr. Gorman when they were given the opportunity, this phone call likely

would have been disclosed then. Additionally, because the record reflects that Dr.

Gorman’s role in preparing the vocational rehabilitation report was largely

supervisory, a fact of which Appellants were aware, it is within the scope of

expectation that Dr. Gorman would follow up with Mr. Lavigne to confirm Ms.

Beckwith’s statements in the report before signing off on it.

We do not find that Dr. Gorman testified outside of his area of expertise or

outside of the information contained in the vocational rehabilitation report. Dr.

Gorman testified that, as a vocational rehabilitation expert, he was called upon to

consult with Mr. Lavigne about the employment he held at the time of the accident,

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the employment he currently holds, and what future job prospects he may have,

should he leave that employment, which Dr. Gorman named Mr. Lavigne’s

“before-” and “after-injury profiles.” Dr. Gorman expressly testified these profiles

were contained in the report. We therefore find that Dr. Gorman’s testimony, based

on his consultation with Mr. Lavigne, about his abilities in his past and current jobs

were within Dr. Gorman’s field of vocational rehabilitation and were contained in

the profiles contained in his report. We therefore find that the trial court did not

abuse its discretion in admitting and not limiting Dr. Gorman’s expert testimony.

Dr. Jeremy Cummings

Appellants argue Dr. Cummings’ testimony should have been limited and he

should not have been allowed to testify regarding biochemical engineering due to

what was, according to Appellants, the trial court’s ruling on this issue. Appellants

argue this ruling was abruptly changed after Mr. Lavigne was allowed to untimely

submit additional information on Dr. Cummings’ methodology after the

commencement of trial after Mr. Lavigne’s counsel had an improper ex parte

communication with the trial court’s law clerk about the case.

Appellants’ contention that the trial court ruled Dr. Cummings was unable to

testify as an expert in biochemical engineering is not supported by the record.

Indeed, Appellants, in their pretrial motion challenging the admissibility of Dr.

Cummings’ expert testimony, stated they were not challenging Dr. Cummings as

an expert in biomechanical engineering but were merely challenging his

methodologies. Nevertheless, the record reflects that at no point did the trial court

rule Dr. Cummings could not testify as an expert in biomechanical engineering.

We find that the trial court did not abuse its discretion in admitting Dr.

Cummings’ testimony as an expert in biomechanical engineering generally, and

15

specifically, on the use of the MADYMO model8 to determine the effects of the

forces of the accident in causing Mr. Lavigne’s herniated discs. The only challenge

to Dr. Cummings’ testimony Appellants asserted pre-trial and on appeal is whether

Dr. Cummings’ use of the MADYMO model to determine the effect of the

accident on Mr. Lavigne’s back and neck was proper. Appellants asserted that, per

accepted methodologies, the MADYMO could not be used in the way Dr.

Cummings used it. The record reflects that Dr. Cummings provided sources which

supported his use of MADYMO in the way in which he used it, which the trial

court found credible, and which resolved the trial court’s doubts about Dr.

Cummings’ testimony. Aside from arguing that the sources were produced late—

albeit at the trial court’s request—Appellants make no showing that the sources are

unreliable or incorrect. Having already found that Appellants waived their right to

object to the timeliness of the conclusion of the hearing for Dr. Cummings or his

production of additional sources for his methodologies, we find that the trial court

did not abuse its discretion in allowing Dr. Cummings’ testimony or the additional

sources that supported Dr. Cummings’ methodology.

II. Admission of Dr. Bradley Bartholomew’s Testimony

Appellants assert that the trial court should not have allowed Dr.

Bartholomew to testify as to an examination he performed on Mr. Lavigne on the

second day of trial that had not been previously disclosed to Appellants. Appellants

further argue that the trial court erred in allowing Dr. Bartholomew to testify and

opine, not as a treating physician, but as an expert, regarding Mr. Lavigne’s current

8
The MADYMO model is biomechanical engineering model of the human body, developed by
the United States Air Force, which Dr. Cummings opined could be used to measure the effect of
forces on discs in the human body.

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physical condition, what future medical care he may need, and the cost of that

future medical care. We find both of these arguments to be without merit, and that

the trial court did not abuse its discretion in allowing Dr. Bartholomew’s

testimony.

The record reflects that, contrary to Appellants’ contention, Dr.

Bartholomew was offered and accepted—without questioning or objection by

Appellants—as both an expert in neurosurgery and as Mr. Lavigne’s treating

physician. To the extent that Appellants failed to timely raise an objection to Dr.

Bartholomew’s expertise at trial, they have waived their ability to assign as error

any testimony he gave as an expert at trial. Everhardt, 2007-0981, p. 11, (La. App.

4 Cir. 2/20/08), 978 So.2d 1036, 1046. Nevertheless, this Court finds that Dr.

Bartholomew’s testimony about Mr. Lavigne’s need for neck surgery to correct his

physical condition—which Dr. Bartholomew opined was caused by the accident—

to be within Dr. Bartholomew’s field of expertise in neurosurgery. This Court also

finds, based on the fact that Dr. Bartholomew testified about his extensive

experience as a neurosurgeon, which would necessarily include knowledge of the

cost of those surgeries, that his testimony on the expected cost of Mr. Lavigne’s

surgery was also within Dr. Bartholomew’s field of expertise. Dr. Bartholomew’s

testimony as a treating physician was also properly admitted because he testified

that he was not only retained for purposes of litigation as an expert, but to examine

Mr. Lavigne, review his symptoms and medical history, make diagnoses, and offer

medical advice based on those diagnoses on the treatment of Mr. Lavigne’s

medical condition.

A review of the record shows that Appellants’ complaint that Dr.

Bartholomew should not have been permitted to testify about his examination of

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Mr. Lavigne on the second day of trial was also waived by Appellants’ failure to

object to this testimony at trial. Indeed, the record reflects that, during a recess of

the trial, Appellants conceded that Dr. Bartholomew could testify as to all

examinations Dr. Bartholomew performed on Mr. Lavigne, including the one that

occurred after the beginning of trial, if the most recent examination did not change

Dr. Bartholomew’s medical opinions. Dr. Bartholomew went on to testify—

without objection by Appellants—that he examined Mr. Lavigne after the

commencement of trial and that his medical opinions on Mr. Lavigne’s treatment

remained the same. Based on this recent examination of Mr. Lavigne, it was not an

abuse of discretion for the trial court to allow testimony regarding Mr. Lavigne’s

current physical condition.

III. Jury Instructions

Appellants also assert that the trial court erred in instructing the jury on

comparative fault, future medical expenses, and past and future lost wages, and

that the erroneous instructions lead to a “conscience-shocking” jury award in favor

of Mr. Lavigne. Appellants assert that, as a result, the judgment should be

reviewed de novo because the judgment rendered by the jury was not grounded in

law or facts. We find these assignments of error lack merit.

“A party may not assign as error the giving or the failure to give an

instruction unless he objects thereto either before the jury retires to consider its

verdict or immediately after the jury retires, stating specifically the matter to which

he objects and the grounds of his objection.” La. C.C.P. art. 1793(C); See also

Yokum v. Funky 544 Rhythm & Blues Cafe, 2016-1142, p. 5 (La. App. 4 Cir.

5/23/18), 248 So.3d 723, 731; Johnson v. Terrebonne Parish Sheriff's Office, 1995-

1180 (La. App. 1 Cir. 2/23/96), 669 So.2d 577. “A party's failure to timely object,

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for the record, with specificity, constitutes a waiver of the objection.” Berrera v.

Hyundai Motor Am. Corp., 620 So.2d 890, 893 (La. App. 4 Cir. 1993). This rule is

meant to prevent counsel from “permit[ing] or acquiesc[ing] in an easily corrected

procedural error and then, after an adverse verdict, urge such error for the first time

as a ground for setting aside the jury verdict reached by the expensive and

cumbersome method of a jury trial.” Renz v. Texas & Pacific Railway Co., 138

So.2d 114 (La. App. 3 Cir. 1962).

We find that Appellants waived appellate review of this issue because the

record reflects that Appellants failed to object to the jury instructions, either before

the jury retired to deliberate or after. Instead, review of the record shows that,

Appellants made some arguments as to additions or deletions from the jury

instructions in the jury charge conference held on the penultimate day of trial and

before the jury entered the courtroom to hear closing arguments. They did not,

however, make any objection to the specific jury instructions once the trial court

read them. During the conferences with the Court on the jury instructions,

Defendants noted they disagreed with counsel for Mr. Lavigne’s appreciation of

the law on comparative fault and past and future lost wages. Before the charges

were read, however, the record shows that the parties and the trial court had

reached an agreement on the charges to be given to the jury. Therefore, this issue

has not been preserved for appeal.

“Nevertheless, if jury instructions or interrogatories contain a ‘plain and

fundamental’ error, the contemporaneous objection requirement is relaxed and

appellate review is permitted.” Chicago Prop. Interests, L.L.C. v. Broussard, 2015-

0299, p. 4 (La. App. 4 Cir. 10/21/15), 177 So.3d 1074, 1078 (citing Berg v.

Zummo, 2000-1699, p. 13, n. 5 (La. 4/25/01), 786 So.2d 708, 716). Appellate

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courts should exercise restraint before reversing a jury verdict because of

erroneous jury instructions, and the trial court judgment will not be reversed so

long as the charges accurately reflect the substance of the law. Nicholas v. Allstate

Ins. Co., 99-2522, p. 8 (La. 8/31/00), 765 So.2d 1017, 1023. “In order to determine

whether an erroneous jury instruction was given, reviewing courts must assess the

targeted portion of the instruction in the context of the entire jury charge ‘to

determine if the charges adequately provide the correct principles of law as applied

to the issues framed in the pleadings and the evidence and whether the charges

adequately guided the jury in its determination.’” Wooley v. Lucksinger, 2009-

0571, p. 82 (La. 4/1/11), 61 So.3d 507, 574 (quoting Adams v. Rhodia, Inc., 2007-

2110 pp. 5-6 (La. 5/21/08), 983 So.2d 798, 804). The court must consider on

appeal whether the jury instructions misled the jury to such an extent that justice

could not be dispensed. Adams, 2007-2110, p. 7, 983 So.2d at 804; Nicholas, 1999-

2522, p.8, 765 So.2d at 1023. “In making charges to a jury, a trial judge is not

required to give the precise instructions submitted by either party, but must give

instructions which properly reflect the applicable law in light of the facts of the

particular case.” Taylor v. Tulane Med. Ctr., 98-1967, p. 7 (La. App. 4 Cir.

11/24/99), 751 So.2d 949, 955 (quoting Goodman v. Allstate Ins. Co., 98-732, p. 3

(La. App. 5 Cir. 5/19/99), 736 So.2d 310).

Based on a review of the record, we find that there was no plain and

fundamental error contained in the jury instructions. The trial court gave jury

instructions that properly reflected the applicable law in light of the facts and

evidence presented in this case. We thus decline to reverse the trial court’s

judgment.

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IV. Prejudicial Remarks by Mr. Lavigne’s Counsel During Trial

We next address Appellants’ assignment of error regarding remarks made by

counsel for Mr. Lavigne during trial, which Appellants argue were inflammatory,

prejudicial, and contributed to the conscience-shocking jury award in favor of Mr.

Lavigne. Specifically, Appellants assert that counsel for Mr. Lavigne stated in his

opening statement that Gray Insurance, to whom Appellants complain Mr.

Lavigne’s counsel referred as “the insurance company,” was “going out of [its]

way” to prevent Mr. Lavigne from being “ma[de] whole.” Appellants objected at

the close of opening statements to these remarks. Appellants contend that this

statement was part of a systemic attack on Gray Insurance, which led to a punitive

jury award that was not grounded in law or facts entered into evidence at trial and

that a new trial should be ordered. Appellants point to a ruling by the trial court on

a pre-trial motion in limine wherein Mr. Lavigne’s counsel was ordered not to

make inflammatory remarks about Gray Insurance at trial. Other than the one

remark made in opening statements, however, Appellants point to no other

inflammatory and improperly prejudicial remarks by Mr. Lavigne’s counsel.

Mr. Lavigne counters that Mr. Lavigne was never ordered to refrain from

referring to Gray Insurance as “the insurance company” and that Appellants’

complained-of remarks were both taken out of context and not so prejudicial as to

warrant a new trial. We agree.

Whether statements by counsel in argument in a civil jury trial are proper

must be determined by the facts, conduct, and atmosphere of that particular trial

and the arguments of opposing counsel. Luquette v. Bouillion, 184 So.2d 766 (La.

App. 3rd Cir. 1966); see also Temple v. Liberty Mut. Ins. Co., 316 So.2d 783, 793

(La. App. 1st Cir. 1975). While trial counsel has great latitude in arguing before a

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civil jury, the latitude is controlled by the trial court, who has a duty to confine

statements. Karagiannopoulos v. State Farm Fire & Casualty Co., 94-1048 (La.

App. 5 Cir. 11/10/99); 752 So.2d 202, 209. The ruling of the trial court on possible

prejudicial remarks of counsel before a civil jury is accorded great weight and will

not be reversed absent an abuse of discretion. Temple, 316 So.2d at 894;

Henderson v. Louisiana Downs, Inc., 566 So.2d 1059, 1063 (La. App. 2nd

Cir.1990).

In Carter v. Baham, 95-2126 (La. App. 4 Cir. 10/09/96), 683 So.2d 299,

303, this Court held that, “[c]ounsel has wide latitude to fully discuss the evidence

that was presented in the case, which includes any inferences, deductions, or

analogies that may be reasonably drawn from the evidence.” Despite this wide

latitude, however, this Court has held that “statements not based on evidence or

which encourage the jury to resolve issues by passion or prejudice are improper

during summation.” Id. This Court also acknowledged, however, that “[c]ounsel

may properly argue and comment on matters of general knowledge and folklore

outside the record… [and] may use illustrations based on personal experience.” Id.

at 304.

Mr. Lavigne’s counsel stated the following in his opening statement: “For

the insurance company in this case you will hear evidence that they've gone out of

their way, out of their way, to try not to make… Mr. Lavigne whole.” Mr.

Lavigne’s counsel went on to state that Appellants—and specifically Gray

Insurance—would try to claim the accident which caused Mr. Lavigne’s injuries

was, in whole or in part, due to the fault of Ms. Lowenburg. Indeed, in Appellants’

own opening statement, Ms. Lowenburg’s fault was asserted. Appellants stated:

“[Keep] in mind that it was Ms. Lowenburg's vehicle that did hit Mr. Lavigne's

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vehicle. It was a three-car crash; she’s the one in the middle. But it's not that

defendants made that up.”

Additionally, not only did Appellants in fact argue Ms. Lowenburg’s fault in

opening statements as Mr. Lavigne’s counsel’s opening statement said they

would—presumably in order to avoid liability as Mr. Callais’ insurer—but

Appellants presented evidence at trial of Ms. Lowenburg’s fault and have asserted

her fault on appeal, as well. Therefore, statements that Appellants would use Ms.

Lowenburg’s fault as a means to avoid liability and lessen Mr. Lavigne’s recovery

were not prejudicial, but factual. Further, because Gray Insurance is named as a

defendant in the caption of the case as “Gray Insurance Company,” and was a party

in the case in their capacity as Mr. Callais’ motor vehicle insurance company,

calling Gray Insurance “the insurance company” was also factual, not prejudicial.

Even if the remarks were prejudicial, we find that the trial court cured this by

giving the following instruction immediately prior to opening arguments:

The arguments that the lawyers will make to you in opening and
closing statements are not evidence. Your decision on the facts must
be based on the testimony and the evidence that you hear and see,
what comes from this chair, this is where your evidence comes from.

Given the facts presented in the case and the remarks made by all counsel in

opening statements, the remarks made by counsel for Mr. Lavigne in his opening

statement do not amount to a systemic inflammatory attack on Appellants that was

so prejudicial as to warrant a new trial. Aside from the opening statement,

Appellants cite no other instance of prejudicial remarks by counsel, and our review

of the record does not reveal any such statements might warrant a new trial.

As discussed above, notwithstanding any prejudicial remarks by Mr.

Lavigne’s counsel, a review of the record, including the evidence presented on Mr.

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Callais’ duty as a motorist turning from an inferior street to a superior street, and

the costs of Mr. Lavigne’s past and future medical expenses, as well as his lost

wages and diminished earning capacity, supports the jury’s verdict and award of

damages. We therefore find that this assignment of error lacks merit.

V. Disqualification of Mr. Lavigne’s Counsel

Last, we address Appellants’ assignment of error regarding the trial court’s

denial of Gray Insurance’s motion to disqualify counsel for Mr. Lavigne.

Appellants argue that Mr. Lavigne’s counsel is burdened by a conflict of interest

under the Louisiana Rules of Professional Conduct due to the fact that counsel’s

law partner, Mr. Taylor, represented Gray Insurance in another personal injury

matter prior to and during counsel’s representation of Mr. Lavigne at trial and that

this conflict was not waived in writing by Gray Insurance. Gray Insurance asks this

Court to disqualify Mr. Lavigne’s counsel and assess all costs Gray Insurance

incurred in defending itself in the instant matter against Mr. Lavigne’s counsel and

his law firm. Mr. Lavigne counters that Mr. Taylor received an oral waiver of the

conflict from Gray Insurance and that, because this matter has already been tried

before a jury who rendered a verdict, disqualifying Mr. Lavigne’s counsel at this

juncture would serve no purpose other than to unfairly prejudice Mr. Lavigne. We

agree.

Rule 1.9(a) of the Louisiana Rules of Professional Conduct states:

A lawyer who has formerly represented a client in a matter shall not
thereafter represent another person in the same or a substantially
related matter in which that person's interests are materially adverse to
the interests of the former client unless the former client gives
informed consent, confirmed in writing.

Appellants and counsel for Mr. Lavigne disagree over whether Gray

Insurance gave consent to waive the conflict of interest in any form. The record is

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clear, however, that, even if consent was given, it was not given in writing, as

required by Rule 1.9. Nevertheless, Mr. Taylor, an attorney and law partner of Mr.

Lavigne’s counsel, submitted an affidavit attesting to the fact that he obtained Gray

Insurance’s oral consent to waive the conflict of interest and both he and counsel

for Mr. Lavigne proceeded in their representation of Gray Insurance and Mr.

Lavigne based on that belief. It was not until Gray Insurance filed its motion to

disqualify Mr. Lavigne’s counsel that there was any indication the conflict had not

been waived. Nothing has been submitted that shows that this affidavit is incorrect.

Based on a review of the record, this Court does not believe that Mr. Taylor—or

Mr. Williams—would flagrantly disregard the Rules of Professional Conduct or

submit a false affidavit regarding whether consent to waive the conflict of interest

was received. Because the matter has already proceeded to trial and verdict has

been rendered, disqualifying Mr. Lavigne’s counsel at this point would serve no

other purpose than to punish Mr. Lavigne. Therefore, we affirm the trial court’s

ruling.

DECREE

Based on the foregoing, we affirm the jury’s verdict and award of damages.

We also affirm the trial court’s denial of the motion to disqualify Mr. Lavigne’s

counsel.

AFFIRMED

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