Lloyd Falgout v. American Alternative Insurance Corporation, Bayou Cane Fire Protection District, and Kenneth Himel

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 1291

LLOYD FALGOUT

VERSUS

AMERICAN ALTERNATIVE INSURANCE CORPORATION, BAYOU
CANE FIRE PROTECTION DISTRICT, AND KENNETH HIMEL

JUN 2 7 2024
Judgment Rendered:

M Appealed from the
32nd Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
Docket No. 189008

The Honorable Timothy C. Ellender Jr., Judge Presiding

Tommy J. Badeaux Counsel for Plaintiff/Appellee,
Metairie, Louisiana Lloyd Falgout

Joseph L. Waitz, Jr.
Houma, Louisiana

T. Gregory Schafer Counsel for Defendants/Appellants,
Timothy G. Schafer American Alternative Insurance
New Orleans, Louisiana Corporation, Kenneth Himel, and
Bayou Cane Fire Protection District
Danna E. Schwab
Patricia Reeves Floyd
Houma, Louisiana

BEFORE: McCLENDON, HESTER, AND MILLER, JJ -

C /"" /
GL ar uj-s kt-tm
7

MILLER, J.

This matter is before us on appeal by defendants, American Alternative

Insurance Corporation, Bayou Cane Fire Protection District, and Kenneth Himel,

from a judgment of the trial court in favor of plaintiff, Lloyd Falgout. For the

reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On July 9, 2019, Lloyd Falgout (" Falgout") was driving through a green

light when his vehicle was struck by a vehicle being driven by Kenneth Himel
Himel") and owned by Bayou Cane Fire Protection District (`Bayou Cane"). On

July 7, 2020, Falgout filed a petition for damages, naming American Alternative
Insurance Corporation (" AAIC"), Bayou Cane, and Himel as defendants. Falgout

alleged he sustained physical and mental injuries as a result of the accident. AAIC,

Bayou Cane, and Himel filed an answer on April 28, 2021, generally denying the
allegations contained in the petition.

At the beginning of the trial, the parties stipulated that Bayou Cane and

Himel were insured by AAIC in the amount of $1, 000, 000. 00 for each accident,

along with an umbrella policy in the amount of $4, 000, 000. 00 per occurrence;

Himel was on duty with Bayou Cane at the time of the accident; Himel was solely
at fault in causing the accident; Bayou Cane is a political subdivision of the State

of Louisiana;
the total liability of Bayou Cane for personal injury to Falgout,

exclusive of medical care and related benefits, loss of earnings and loss of future

earnings could not exceed $ 500, 000. 00 under La. R.S. 13: 5106( B)( 1); and certain

surveillance films of Falgout were authenticated.

A bench trial was held on May 4, 2023, and the trial court took the matter

under advisement. On June 21, 2023, the trial court rendered its judgment in open

court,
awarding Falgout $ 1, 686, 198. 19, which included $ 147, 254. 55 in past

medical expenses; $ 538, 943. 64 in future medical expenses; $ 250, 000. 00 in past,

N

present, and future pain and suffering for the shoulder injuries; $ 750, 000. 00 in

past, present, and future pain and suffering for neck and back injuries; and $ 0 for

lost earnings and future lost earnings. The judgment provided that the limitation of

liability provided by La. R.S. 13: 5106' applied so general damages were reduced

from $ 1, 000, 000. 00 to $ 500, 000. 00. Thus, the trial court rendered judgment in

favor of Falgout and against AAIC, Bayou Cane, and Himel, in the amount of

1, 186, 198. 19, together with judicial interest of six percent per annum pursuant to

La. R.S. 13: 51122 on the amount of $647, 254. 46, from the date service of the

original petition was requested until the judgment was signed. Thereafter, pursuant

to the judgment, legal interest would accrue, on the amount of $647, 254. 46, at the

rate fixed by La. R.S. 9: 3500. Further, the judgment provided that pursuant to La.

R.S. 13: 5106, a reversionary trust was established to govern the use and

administration of the award of future medical expenses. The trial court signed its

judgment on August 10, 2023.

AAIC, Bayou Cane, and Himel appealed the August 10, 2023 judgment,

contending the trial court erred in determining Falgout was a truthful witness and

the trial court erred in allowing Falgout' s expert witness, Larry S. Stokes, PhD (life

care planning and vocational rehabilitation expert), to offer an opinion at trial that

was not present in his written report without notice.'

Louisiana Revised Statute 13: 5106( B)( 1) provides:

The total liability of the state and political subdivisions for all damages for
personal injury to any one person, including all claims and derivative claims,
exclusive of property damages, medical care and related benefits and loss of
earnings, and loss of future earnings, as provided in this Section, shall not exceed
five hundred thousand dollars, regardless of the number of suits filed or claims
made for the personal injury to that person.
2 Under La. R.S. 13: 5112( C), legal interest on any claim for personal injury or wrongful death
shall accrue at six percent per annum from the date service is requested following judicial
demand until the judgment thereon is signed by the trial judge in accordance with La. C. C.P. art.
1911.

3 On January 18, 2024, Falgout filed a motion to consolidate in this court, seeking to consolidate
appeals in 2023 CA 1261 and 2023 CA 1291. On March 5, 2024, this court issued an order
granting the motion to consolidate. Pursuant to the order, the appeals were " consolidated for

3

DISCUSSION

In their first assignment of error, AAIC, Bayou Cane, and Himel allege the

trial court erred in its determination that Falgout was a truthful witness. First, the

defendants contend Falgout failed to inform his treating physicians that he had left
shoulder pain and/ or back pain before the accident occurred. Specifically, they

allege the records of Jake Bordelon, DC ( chiropractor), Samer Shamieh, MD

orthopedist), Christopher Cenac, Jr., MD ( orthopedist and independent medical

evaluation), and Michael Haydel, MD ( pain management doctor) all indicate

Falgout did not have or did not mention he had shoulder and/or back pain before

the accident. Second, the defendants contend Falgout made false statements to the

Internal Revenue Service (" IRS") regarding his income by failing to report or

under -reporting his income during 2016 and 2020. Third, the defendants assert

Falgout intentionally made false statements to the Social Security Administration
when he applied for disability benefits in 2018 because he indicated he was unable

to work from 2015 to 2018, but he started working in 2016 as an independent

contractor. Fourth, the defendants claim Falgout omitted facts when he was

interviewed by Dr. Stokes because Falgout did not disclose his prior back pain.

Finally, the defendants contend Falgout admitted at trial that he lied during his
deposition when he denied suffering from left shoulder pain and low back pain
before the accident.

At trial, the factfinder is charged with assessing the credibility of the witness

and is free to accept or reject, in whole or in part, the testimony of any witness.
Vitter v. Blaize, 2022- 1369 ( La. App. 1st Cir. 9/ 20/ 23), 376 So. 3d 193, 199. Where

argument and submission only, and the parties [ were] to continue to file pleadings in each
individual numbered case if it [ was] to be considered in that case." In his motion to consolidate
appeals and in his appellee brief filed in 2023 CA 1291, Falgout stated that he filed an answer to
this appeal ( 2023 CA 1291). While Falgout did file an answer to the other appeal ( 2023 CA
1261), he did not file an answer to this appeal ( 2023 CA 1291). Therefore, we cannot consider
the arguments raised in Falgout' s appellee brief regarding future lost earnings and limitation of
liability under La. R.S. 13: 5106. See La. C. C. P. art. 2133.

M

there is conflict in testimony, reasonable evaluations of credibility and reasonable

inferences of fact should not be disturbed upon review. Id. Additionally, only the
factfinder can be aware of the variations in demeanor and tone of voice that bear so

heavily on the listener' s understanding and belief in what is said. Thus, the

factfinder' s credibility determinations demand great deference and will not be

disturbed on appeal absent manifest error. Kott v. Kott, 2020- 0873 ( La. App. 1St

Cir. 4/ 16/ 21), 324 So. 3d 165, 171- 72. Further, when documents or objective

evidence contradict the witness' s story or the story itself is so internally

inconsistent on its face that a reasonable factfinder would not credit the witness' s

story, the court of appeal may find manifest error. Marcello v. Jo -Blanche

Corporation, 2020- 1113 ( La. App. 1St Cir. 6/ 4/ 21), 330 So. 3d 632, 639- 40, writ

denied, 2021- 01666 ( La. 1/ 19/ 22), 331 So. 3d 330.

The defendants argue Falgout was untruthful when relaying information to
his treating doctors, the IRS, the Social Security Administration, and Dr. Stokes

and in his deposition testimony. However, it is evident from the trial court' s

statements it accepted Falgout' s explanations for his untruthfulness and found him
to be credible —
at least as required to substantiate his claims. During trial, Falgout
stated he had " a muscle -type pain" in his back before the accident and he could

pick up things, put them over his head, and bend down. He stated that before the

accident he had a " minor, irritating pain" in his muscles and lower back but after

the accident he had " striking pain."
Falgout also testified regarding his taxes.

When asked whether he filed taxes from 2014 through 2017, Falgout stated he did
not because he could barely afford to live and he owned a bar at the time, which
paid for all of his needs. He indicated he did not file a 1099 in 2020, but "[ the

State] took $4,000 to pay for those taxes."

In regard to his application to the Social Security Administration, Falgout
testified his sister encouraged him to apply for the assistance. He stated he filled

5

out the application due to his heart condition but included his back issues after his

sister suggested he do so. Falgout justified his application wherein he wrote that he

had not worked from 2015 to 2018 ( when he had been employed since 2016) by

stating he thought employment meant full time employment through which the

applicant made a certain amount of money per year. He further stated that he

reported that he was not working to the Social Security Administration because he

was trying to get Social Security."

Further, Falgout was asked whether he was truthful during his deposition

when he stated he had not had prior left shoulder pain or low back pain, and he

replied that he was not. He was also asked whether the statement he made during
his deposition that he had never had an MR1 was truthful, and Falgout stated it was

not but he did not remember at the time whether he had had one.

The trial court accepted Dr. Stokes as an expert in life care planning and
vocational rehabilitation. Dr. Stokes' s testified that Falgout had disclosed prior

injuries to his left shoulder and elbow, and Dr. Stokes did consider those prior

injuries when formulating his expert opinion. However, Dr. Stokes testified that

Falgout did not mention his history of low back pain. Still, Dr. Stokes stated the

work Falgout did in the construction industry was physically demanding, so

Falgout was able to overcome any prior back pain to do that type of work.

The statements made by the trial court when rendering its judgment indicate

the trial court recognized Falgout was untruthful and withheld information at

times. Nevertheless, the trial court indicated it was able to understand the

inconsistencies and it found Falgout to be a credible witness. Specifically, the trial
court stated,

Mr. Falgout testified.
And certainly in any personal injury
action, it not necessarily rises and falls with the plaintiffs testimony,
but it' s safe to say that the plaintiff' s testimony -- at least in this case -
was a critical part of this case. The defendants did a swell job of
attempting to impeach Mr. Falgout as to his past medical experiences,

C

reporting his medical conditions, prior incidents of injuries and
accidents, his applications in the IRS and Social Security applications
for disability and for tax returns. And Mr. Schafer correctly pointed
out a number of discrepancies in Mr. Falgout' s previous statements.

Mr. Falgout testified that he has had a long-running experience
with personal injuries involving these parts, some of the same parts of
his body that he claims to have injured as a result of this accident.
And while he was able to acknowledge some of the falsities of some
applications made in Social Security disability what -not, he testified
from his own personal experience the nature of his injuries, his
previous injuries, his work experience after the injuries, and his

accommodations that have been made to his profession working ...
since this 2019 accident.

The Court is of the opinion that based upon his testimony and
the testimony of I think every single doctor that Mr. Falgout' s injuries
complained of in this accident were at the very least an aggravation of
a pre- existing condition, to which the defendant owes a responsibility
and a liability under [La. C.C. art.] 2315 to make the plaintiff whole to
the furthest extent of his aggravation.

The record is clear that after these injuries in 2019, Mr. Falgout
sought medical treatment, went through a number of courses of
treatment, and submitted also to an independent medical exam
conducted by the orthopedic surgeon chosen by the defendant to
conduct this independent medical examination, which testimony was
consistent with the other doctors' testimony and consistent with Mr.
Falgout' s complaints that these injuries were the cause, were caused
by the accident of July 9th, 2019.

As to the discrepancies in Mr. Falgout' s testimony, I feel like
his actions speak louder [ than] his words.... And it appears as though
since 2019, Mr. Falgout attempted to make accommodations with his
work ...
and did his best to return to his occupation and, in fact, did
return. And it turns out, made more money after the accident than he
did before the accident. If that doesn' t show a willingness to mitigate
damages, I don' t know what does.

And so I' m convinced by a preponderance of the evidence that
Mr. Falgout was being truthful as to his injuries in relating them back
to the July 9th, 2019 accident, which is also consistent with the
medical testimony of all the doctors, including and especially Dr.
Cenac who was chosen by the defendants to evaluate the plaintiff
from an independent standpoint.

The trial court was able to observe Falgout' s variations in demeanor and

tone of voice and determined Falgout was being truthful as to his injuries. While

Falgout may have been untruthful at times, the trial court felt he was forthcoming
at trial and adequately explained why he did not always file his taxes on time and

VA

why he did not fill out the application with the Social Security Administration

accurately. He further explained why he stated he did not have back or shoulder

pain before the accident. This court must give great weight to factual conclusions

of the trier -of f-act; where there is conflict in the testimony, reasonable evaluations

of credibility and reasonable inferences of fact should not be disturbed upon

review, even though the reviewing court may feel that its own evaluations and

inferences are as reasonable. Aaron v. Exxon Mobil Corporation, 2018- 0476 ( La.

App. I" Cir. 12/ 27/ 18), 271 So. 3d 205, 215. After reviewing the evidence, we find

the trial court made reasonable evaluations of credibility and reasonable inferences

of fact, and its findings were not clearly wrong. Thus, the trial court did not

commit manifest error in determining Falgout was a credible witness. This

assignment of error is without merit.

In their second assignment of error, AAIC, Bayou Cane, and Himel allege

the trial court violated La. C. C.P. art. 1425( B) when it allowed Falgout' s expert

witness, Dr. Stokes, to offer an opinion at trial that was not present in his written

report. They contend Falgout gave no notice that Dr. Stokes' s testimony would be
different from that contained in his report.

Louisiana Code of Civil Procedure article 1425( B) provides:

Upon contradictory motion of any party or on the court' s own motion,
an order may be entered requiring that each party that has retained ...
a person to provide expert testimony in the case ... provide a written
report prepared and signed by the witness. The report shall contain a
complete statement of all opinions to be expressed and the basis and
reasons therefor and the data or other infori-nation considered by the
witness in forming the opinions. The parties, upon agreement, or if
ordered by the court, shall include in the report any or all of the
following: exhibits to be used as a summary of or support for the
opinions; the qualifications of the witness,
including a list of all
publications authored by the witness within the preceding ten years;
the compensation to be paid for the study and testimony; a listing of
any other cases in which the witness has testified as an expert at trial
or by deposition within the preceding four years.

PI.,

In considering expert testimony, the trial court may accept or reject in whole

or in part the opinion expressed by an expert, even to the point of substituting its

own common sense and judgment for that of an expert witness where, in the fact -

finder' s opinion, such substitution appears warranted by the evidence as a whole.

The effect and weight to be given expert testimony is within the broad discretion of

the trial court. Marr v. Marr, 2012- 1551 ( La. App. 1st Cir. 7/ 17/ 13), 2013 WL

3788409, * 4 ( unpublished).
The decision reached by the trial court regarding

expert testimony will not be disturbed on appeal absent a finding that the trial court

abused its broad discretion. Morgan v. State Farm Fire and Casually Company,
Inc., 2007- 0334 ( La. App. 1st Cir. 11/ 2/ 07), 978 So. 2d 941, 946.

Dr. Stokes is a licensed rehabilitation counselor and a certified life care

planner. Dr. Stokes met with Falgout to conduct a life care plan assessment, and

his report was based off of a clinical interview with Falgout, a review of available

records provided by Falgout' s attorney, correspondence from Dr. Shamieh, and the

results of research. In his report, Dr. Stokes stated Falgout would need one anterior

lumbar fusion at L5 -SI pursuant to the recommendation of Dr. Shamieh and

opined the cost would range from $ 269, 471. 82 to $
298, 530.23. Thereafter, during

his trial testimony, Dr. Stokes was asked a question regarding Dr. Cenac' s opinion
that Falgout would need a second anterior lumbar fusion at L5 -SI in 20 years.

Counsel for the defendants objected to the question, arguing it was beyond the

scope of Dr. Stokes' s report. The trial court overruled the objection.

Thereafter, Falgout' s counsel again asked Dr. Stokes, if Dr. Cenac opined

Falgout would need a second anterior lumbar fusion at L5 -SI in 20 years, how
much would it cost. Dr. Stokes indicated he would not have to do additional

research to know the cost of the second anterior lumbar fusion at L5 -S I because

his research for the first anterior lumbar fusion at L5 -SI was " so fresh." He

specified that the cost of the second anterior lumbar fusion at L5 -SI would be the

0

same as the cost of the first anterior lumbar fusion at L5 -Sl. Thus, the cost of two

surgeries would be the cost of the first surgery times two. Dr. Stokes further

testified he did not know how much the surgery would cost in 20 years and the

number he provided was the amount it would cost at the time of the trial. At the

conclusion of the trial, the trial court awarded Falgout $ 538, 943. 64 in future

medical expenses, which is the amount Dr. Stokes stated was the low cost for one

anterior lumbar fusion at L5 -S 1 ($ 269,471. 82) times two.

Dr. Stokes did not state his opinion as to whether Falgout would require a

second anterior lumbar fusion at L5 -S 1 in the future. Dr. Stokes only stated that to
determine the cost of a second anterior lumbar fusion at L5 -Sl, he would use the

same research and numbers as the cost of the first anterior lumbar fusion at L5 -Sl.

The trial court could have arrived at the same award for Falgout' s future medical

expenses without Dr.
Stokes' s testimony regarding the second surgery because

both Dr. Cenac' s deposition, which indicates a second surgery would be required
in the future, and Dr. Stokes' s expert report and testimony, which indicate the cost
of an anterior lumbar fusion at L5- S1, were admitted at trial. Dr. Stokes did not

testify beyond the scope of his report when he testified as to the cost of an anterior
lumbar fusion at L5 -SI,
whether one or multiple of the same surgery is required,

where no additional work was performed or required to formulate his opinion.

Thus, the trial court did not abuse its discretion, and its decision regarding Dr.
Stokes' s testimony will not be disturbed on appeal. This assignment of error is

without merit.

CONCLUSION

For the above and foregoing reasons, the August 10, 2023 judgment of the

trial court is affirmed. All costs of this appeal in the amount of $13, 476. 00 are

assessed against American Alternative Insurance Corporation, Bayou Cane Fire
Protection District, and Kenneth Himel.

10

11

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

DOCKET NUMBER

2023 CA 1291

LLOYD FALLOUT

VERSUS

AMERICAN ALTERNATIVE INSURANCE CORPORATION, BAYOU CANE FIRE
PROTECTION DISTRICT, AND KENNETH HIMEL

McClendon, J., concurring.

While the record on occasion calls into question Mr. Falgout`s honesty, given the
evidence presented and the explanations provided by Mr. Falgout, and based on the
manifest error standard of review and the deference owed to the credibility

determinations of the trial court, I cannot find that the trial court erred. Thus, I concur in
the result reached by the majority.