Mohab Said v. Federated Rural Electric Insurance Exchange, Et Al.

Supreme Court of Louisiana
April 20, 2021
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
MOHAB SAID
VS.
FEDERATED RURAL ELECTRIC INSURANCE
EXCHANGE, ET AL.
No.2021-C-00078
_ _ _ _
_ _
IN R
E: Mohab F. Said - Applicant Plaintiff; Applying For Writ Of Certiorari, Parish
of Beauregard, 36th Judicial District Court Number(s) C -2013-0786, Court of
Appeal, Third Circuit, Number(s) CA 19-915;
_ _ _ _ _ _
April 20, 2021
Writ application granted. See per curiam.
Weimer, C.J., would grant and docket.
Crichton, J., would grant and docket and assigns reasons.
JDH
JTG
WJC
JBM
PDG
04/20/2021 "See News Release 016 for any Concurrences and/or Dissents."

04/20/21
S
UPREME COURT OF LOUISIANA
No
. 2021-C-0078
MOHAB SAID
V.
FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, et al.
ON SUPERVISORY WRIT TO THE 36th JUDICIAL
DISTRICT COURT FOR THE PARISH OF BEAUREGARD
PER CURIAM
W rit granted. The court of appeal found that the trial court’s limitation of the
testimony of the applicant’s original, local treating physicians was erroneous, but
concluded that no reversible error had occurred. In its analysis, the court of appeal
noted that “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,’” citing Buckbee v. United
Gas Pipe Line Co., Inc., 561 So.2d 76, 85 (La. 1990), wherein the court cited State
v.
B
ritton, 27 Wash.2d 336, 341, 178 P.2d 341, 344 (1947), and Eastburn v. Ford
Motor Co., 471 F.2d 21, 22-23 (5th Cir. 1972), which applied Florida law, and found
that the trial court’s limitation of the testimony of the local physicians neither
affected the outcome of the case , nor adversely affected the applicant’s substantial
rights. Specifically, the court of appeal found that the applicant was able to present
the information and opinions that the local physicians would have given through the
Washington, D.C. physicians. As such, the court of appeal found that the jury was
aware of the expert medical opinion that the applicant suffered a brain injury that
was related to the accident, and nevertheless did not find, as fact, that the allegation
had merit, and therefore, the limitation of the local physicians’ testimony did not
constitute reversible error.

2

While we agree that the trial court’ s limitation of the testimony of the local
treating physicians was erroneous, we disagree with the court of appeal’s assessment
of the degree of prejudice of the excluded testimony. This case hinges upon the
applicant’s ability to prove, by a preponderance of the evidence, that: 1) he suffered
a brain injury; and, 2) that the injury was caused by the accident. In this case, the
applicant was initially treated by Dr. Hajmurad, a local neurologist, for
approximately one year immediately following the accident. Although the applicant
was symptomatic, the tests, including an MRI in 2012, appeared to be negative for
any objective evidence of a brain injury. However, when a subse quent MRI was
conducted in 2014, it was discovered that such objective evidence wa s, in fact,
visible on the 2012 MRI, but was missed due to its location on the film. Pursuant to
the trial court’s ruling granting the respondent’s motion in limine , the local
physicians were prohibited from telling the jury of this subsequent discovery and the
resulting change in their initial diagnosis. Consequently, the local treating
physicians were only allowed to tell the jury that they treated the applicant, but found
no objective evidence of a brain injury, even after conducting diagnostic tests. The
trial court’s ruling served to bolster the narrative championed by the respondent—
that the local treating physicians found no objective evidence to support that the
applicant suffered a brain injury in the accident, and that the testimony from the
Washington, D.C. physicians was not credible because they were merely hired guns
paid by the applicant’s attorney. The court of appeal therefore appears to have erred
insofar as it determined that the ruling had no effect on the outcom e of this case.
Rather, given Dr. Hajmurad’s extensive treatment of the applicant throughout the
months immediately following the accident, and in light of the substance of his
proffered testimony, which was with benefit of the revised MRI result, the proffered
testimony may have indeed changed the outcome of the trial, and its exclusion was
prejudicial to the applicant’s case.

3

If a trial judge commits consequential error by denying the jury relevant,
admissible evidence, or by admitting evidence that should have been excluded, the
fact finding process is interdicted; thus, the verdict is tainted. See McLean v.
Hunter, 495 So.2d 1298, 1304 (La. 1986). Generally, when a legal error interdicts
the fact finding process, the manifest error standard no longer applies. If the record
is otherwise complete, the reviewing court should conduct a de novo review and
decide which party should prevail by a preponderance of the evidence . Landry v.
Bellanger, 02–1443, p. 15 (La. 5/20/03), 851 So.2d 943, 954; Gonzales v. Xerox
Corporation, 320 So.2d 163 (La. 1975); Ragas v. Argonaut Southwest Insurance
Co., 388 So.2d 707, 708 (La. 1980); Savin v. Allstate Insurance Company, 579
So.2d 453, 457 (La. App. 1 Cir.1991); Moore v. Clark , 517 So.2d 293, 302 (La.
App. 1 Cir.1987). There are, however, situations in which the ends of justice would
best be served by remanding the case for a new trial. See Wegener v. Lafayette
Ins. Co., 10-0810 (La. 3/15/11), 60 So. 3d 1220; See also Herbert v. Travelers
Indem. Co., 193 So.2d 330, 337–38 (La. App. 1967). It is the duty of the appellate
court to determine when “the court can fairly find a preponderance of the evidence
from the cold record,” or whether the case should be remanded. See Landry, 02–
1443 at p. 15, 851 So.2d at 954 ; See also Franklin v. Franklin , 2005-1814 (La.
App. 1 Cir. 12/22/05) 928 So.2d 90, 94. As noted in Hebert, “Since the right of trial
by jury in civil cases is granted by our law, it is the duty of the courts to protect that
right and give it meaning and effectiveness. ” In this case, the applicant, who has
exercised his right to trial by jury, was denied substantial justice when the jury was
denied benefit of the local treating physicians’ complete testimony, and therefore the
ends of justice would be served by remanding this case for a new trial.
The trial court’s ruling, granting the motion in limine and limiting the
testimony of the applicant’s local, treating physicians is reversed and this case is
remanded for a new trial.

4

WRIT GRANTED and REMANDED.