Susan Pollard Versus 21st Century Insurance Company A/K/A Farmers Insurance Group and Roy Cefalu

SUSAN D. POLLARD NO. 21-CA-65
C/W
VERSUS 21-C-48

21ST CENTURY CENTENNIAL INSURANCE FIFTH CIRCUIT
COMPANY A/K/A FARMER'S INSURANCE
GROUP AND ROY A. CEFALU COURT OF APPEAL

C/W STATE OF LOUISIANA

SUSAN POLLARD

VERSUS

21ST CENTURY INSURANCE COMPANY
A/K/A FARMERS INSURANCE GROUP AND
ROY CEFALU

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 762-162, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

December 23, 2021

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Robert A. Chaisson, and Hans J. Liljeberg

JUDGMENT VACATED AND REMANDED
FHW
RAC
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
SUSAN D. POLLARD
Kelly S. Rizzo
John W. Redmann
Edward L. Moreno

COUNSEL FOR DEFENDANT/APPELLEE,
21ST CENTURY CENTENNIAL INSURANCE COMPANY A/K/A FARMERS
INSURANCE GROUP AND ROY A. CEFALU
Jack E. Truitt
Lou Anne Milliman
Michelle Mayne Davis
Lauren A. Duncan
Angelina Valuri

COUNSEL FOR DEFENDANT/APPELLEE,
HARTFORD INSURANCE COMPANY OF THE SOUTHEAST
Daniel R. Atkinson, Jr.

WICKER, J.

Plaintiff, Susan D. Pollard, appeals the July 30, 2020 judgment rendered after

a jury verdict in favor of the defendants, Roy A. Cefalu, 21st Century Centennial

Insurance Company and Hartford Insurance Company of the Southeast, and against

plaintiff, who was injured in a June 22, 2015 rear-end motor vehicle accident. On

appeal, Ms. Pollard complains that the trial court erred by failing to exclude

defendants’ expert witness who lacked the requisite experience and methodology to

provide expert testimony in the fields of accident reconstruction, biomechanics,

medicine, or occupant kinematics. For the reasons that follow, the trial court ruling

that denied the exclusion of Dr. Charles E. Bain’s testimony is reversed, the

judgment entered on the jury verdict is vacated, and we remand this matter for a new

trial.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On June 22, 2015, appellant-plaintiff, Susan D. Pollard, was involved in a

motor vehicle accident in which Ms. Pollard’s 2003 Ford Escape was struck by a

vehicle driven by appellee-defendant, Roy A. Cefalu, who was insured by 21st

Century Centennial Insurance Company (21st Century). On June 21, 2016, Ms.

Pollard filed a Petition for Damages asserting that she sustained injuries as a result

of the accident. Prior to trial, on March 10, 2017, the parties entered into a Joint

Stipulation that Mr. Cefalu rear-ended Ms. Pollard’s vehicle, that he was the sole

and proximate cause of the two-vehicle accident, and that Ms. Pollard was free of

fault for the accident. Thus, the only triable issues remaining were damages and

medical causation for the injuries alleged to be related to the accident.

21-CA-65 C/W 21-C-48 1

Several pre-trial motions were filed by the parties.1 Prior to the conclusion of

discovery, on July 17, 2019, Ms. Pollard filed a Daubert2 motion to strike, or

alternatively, to exclude or limit, Dr. Charles E. Bain as an expert for defendants on

the grounds that Dr. Bain’s qualifications and methodology failed to satisfy the

requirements outlined in Daubert and La. C.E. art. 702, and that his testimony would

only confuse the jury relative to the force of impact being determinative of a person’s

injuries. Mr. Cefalu and 21st Century filed an opposition to the motion on August

26, 2019, wherein they argued that numerous courts have permitted Dr. Bain to

testify as an expert in his proffered area of expertise upon considering his experience,

his well-accepted methodologies, and his opinions assisting the trier-of-fact.

Thereafter, on August 1, 2019, Ms. Pollard filed an Omnibus Motion in Limine to

exclude any statements by the parties regarding the degree of impact, photographs

of the vehicles involved in the crash, and disclosure of the insurance policy limits.

At the hearing,3 on September 4, 2019, the trial court, inter alia, denied Ms. Pollard’s

motion to strike or exclude Dr. Bain’s expert testimony. However, the court granted,

in part, Ms. Pollard’s Omnibus Motion in Limine as to the insurance policy limits,

but deferred ruling on all other issues until trial.

A five-day jury trial commenced from March 9, 2020 through March 13,

2020. At trial, on March 12, 2020, voir dire was conducted by both parties of

defendants’ expert witness, Dr. Charles E. Bain, whose testimony was offered to

1
On July 25, 2019, Defendants, Mr. Cefalu and 21st Century, filed a Motion in Limine and Supporting
Memorandum to Exclude Jeff Mohr and Motion in Limine and Supporting Memorandum to Exclude David
Barczyk, D.C., both of which were asserted on the basis that each expert lacked the reliability required and
that their testimony would be cumulative. On July 26, 2019, Defendants filed a Motion in Limine and
Supporting Memorandum to Exclude Dr. Shael N. Wolfson and Dr. James R. Bartkus, citing both experts’
opinions lacked an adequate foundation and methodology. On July 30, 2019, Ms. Pollard filed a Motion
to Strike Defendants’ Motions to Exclude Plaintiff’s Experts as untimely pursuant to La. C.C.P. art. 1425.
On August 1, 2019, Ms. Pollard filed a Motion to Strike Dr. David Aiken’s Supplemental IME Report.
2
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469
(1993).
3
The trial court considered various motions filed by the parties, and made the following rulings: (1) denied
Ms. Pollard Motion to Strike Defendants’ Motions to Exclude Plaintiff’s Experts as untimely pursuant to
La. C.C.P. art. 1425; (2) granted Ms. Pollard’s Motion to Strike Dr. David Aiken’s Supplemental IME
Report; (3) denied Defendants’ Motion in Limine to Exclude Dr. Shael N. Wolfson and Dr. James R.
Bartkus; (4) denied Defendants’ Motion in Limine to Exclude David Barczyk, D.C.; and (5) mooted
Defendants’ Motion In Limine to Exclude Jeff Mohr.

21-CA-65 C/W 21-C-48 2

address the issue of medical causation for the alleged injuries sustained by Ms.

Pollard in connection with the June 22, 2015 accident. On direct examination, Dr.

Bain testified that he performs accident reconstruction and biomechanical analysis,

and renders medical opinions. Dr. Bain has testified at trial as an expert in the areas

of biomechanics, injury causation analysis, and accident reconstruction in 165 cases

over seventeen years in thirty U.S. states and Canada. Dr. Bain further testified that

he has a nuclear engineering degree, which he describes as a combination of

chemical and mechanical engineering and nuclear science, which he received in

1974 from the College of Canada. In 1983, he graduated from medical school in

Canada. After completing medical school, he received his license to practice

medicine in Canada.

In Canada, Dr. Bain practiced medicine in the fields of emergency medicine

and family medicine until 2003. Recently, he received his license to practice

medicine in Texas. Dr. Bain also testified that his expertise in orthopedics has been

well-founded in his experience in emergency and family medicine through his

regular treatment of patients as an emergency physician and family physician.

Dr. Bain further testified that he did not perform a reconstruction of the June

22, 2015 accident at issue since liability had already been determined in the instant

matter. However, he did perform an impact severity analysis to determine the force

of impact in the collision at issue. Dr. Bain explained that since the accident was a

minimal damage collision, he used test data at his crash test facility and the force

reflection method to determine how fast Mr. Cefalu was traveling to cause damage

to Ms. Pollard’s vehicle. Dr. Bain opined that Ms. Pollard was not seriously injured

in the June 22, 2015 collision despite her treating physicians’ opinions of her

injuries.

On cross-examination, Dr. Bain confirmed that he is a co-owner of

Biodynamics Research Corporation (“BRC”), where collision tests are performed

21-CA-65 C/W 21-C-48 3

and the data is collected that he utilizes in his injury causation analysis for collisions.

Dr. Bain also testified that he only practices non-clinical medicine consisting of

reviewing medical records and opining on same in Texas. He has not treated any

patients in the United States, and he last treated patients over seventeen years ago in

2003 in Canada. Dr. Bain agreed that he has never been trained as an orthopedist,

neurologist, or neuropsychologist. Dr. Bain acknowledged that while he has a

degree in nuclear engineering, he has never been licensed as a professional engineer,

and has never earned degree in biomechanics.

Relative to the accident, Dr. Bain testified that he did not visit the scene of the

accident, but used Google Earth and 3D function to examine the accident scene since

the accident was a minor event. Despite Ms. Pollard’s objections, the trial court

qualified Dr. Bain as an expert in the fields of accident reconstruction, biomechanics,

medicine, and occupant kinematics.

At the conclusion of trial, the jury rendered a verdict in favor of defendants,

finding that Ms. Pollard was not injured in the June 22, 2015 collision. On July 30,

2020, the trial court issued a judgment consistent with the jury verdict and dismissed

Ms. Pollard’s claims, at her costs. Ms. Pollard appeals the July 30, 2020 judgment.

In addition to the appeal, Ms. Pollard has sought this Court’s supervisory

review of the trial court’s January 4, 2021 judgment granting Defendants’ Motion to

Tax Costs against Plaintiff on the basis that the March 13, 2020 jury verdict found

she had not suffered any damages.4 Since the appeal of the July 30, 2020 judgment

and the writ taken from the January 4, 2021 judgment contain interrelated issues and

arise out of the same district court case, we have consolidated this appeal and the

writ, and our review of both judgments is contained herein.

4
On February 4, 2021, Ms. Pollard filed a writ application seeking this Court’s supervisory review of the
trial court’s January 4, 2021 judgment granting 21st Century’s Motion to Assess Costs in the amount of
$34,536.33. It was assigned case number 21-C-48, and this court issued an order on March 3, 2021,
consolidating the writ application with Ms. Pollard’s appeal assigned case number 21-CA-65.

21-CA-65 C/W 21-C-48 4

ASSIGNMENTS OF ERROR

On appeal, Ms. Pollard asserts the following assignments of error:

1. The court erred in permitting Dr. Bain to testify at trial as an expert in accident

reconstruction, biomechanics, medicine, or occupant kinematics;

2. The court erred in admitting the surveillance video as evidence;

3. The court erred in denying Plaintiff’s motion in limine and in rejecting

Plaintiff’s proposed jury instruction on the irrelevance of force of impact;

4. The court erred in refusing to excuse a juror who stated under oath that due to

his language barrier, he only understood thirty to forty percent of what was

discussed during trial;

5. The court erred in limiting Plaintiff’s direct examination of her treating

neurologist, Dr. Trahant, without any forewarning on time limits;

6. The court erred in limiting Plaintiff’s voir dire of Defense’s offered expert,

Dr. Bain, on his qualifications without any forewarning; and

7. The trial court erred in denying Plaintiff’s motion for JNOV, new trial, and

additur.

LAW AND ANALYSIS

On appeal, in her first assignment of error, Ms. Pollard contends that the trial

court erred in its pretrial ruling wherein it denied her motion in limine to exclude

and/or limit the testimony of Dr. Bain who lacked the qualifications to testify as an

expert, a reliable methodology, and a sufficient basis for his opinions. Additionally,

Ms. Pollard asserts that the trial court erred in permitting Dr. Bain, who had no

training, license, certification, or professional affiliation in any specialty relative to

the injury-causation analysis, to testify concerning a causal link between the accident

at issue and her injuries. Ms. Pollard further asserts that the jury erroneously relied

on that testimony in rendering its verdict.

21-CA-65 C/W 21-C-48 5

The record reflects that, at trial, Dr. Bain was accepted as an expert in the

fields of accident reconstruction, biomechanics, medicine, and occupant kinematics,

and that Ms. Pollard objected to his qualifications as an expert in those fields. We

consider Ms. Pollard’s first assignment of error to be a challenge to Dr. Bain’s

qualifications and methodology under Article 702 of the Louisiana Code of

Evidence. Therefore, we first examine whether Dr. Bain’s opinion with respect to

the medical causation of Ms. Pollard’s injuries is the product of reliable methods as

required by that Article.

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. Rhodes v. AMKO Fence & Steel Co., LLC, 21-

19, p. 6 (La. App. 5 Cir. 10/28/21), 2021 WL 5002302. A trial judge has great

discretion concerning the admissibility and relevancy of evidence, and has wide

latitude to determine whether an expert has the competence, background, and

experience to qualify. Schexnayder v. Exxon Pipeline Co., 01-1236 (La. App. 5 Cir.

3/13/02), 815 So.2d 156, 159. A trial court’s ruling to qualify an expert to testify at

trial will not be disturbed on appeal absent a clear abuse of discretion. Succession of

Olsen, 19-348 (La. App. 5 Cir. 1/29/20), 290 So.3d 727, 735, writ denied, 20-362

(La. 6/3/20), 296 So.3d 1067.

A witness who is qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise if: (1) the

expert’s scientific, technical, or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue; (2) the testimony is

based on sufficient facts or data; (3) the testimony is the product of reliable principles

and methods; and (4) the expert has reliably applied the principles and methods to

the facts of the case. La. C.E. art. 702; Par. of Jefferson v. Hous. Auth. of Jefferson

Par., 17-272 (La. App. 5 Cir. 12/13/17), 234 So.3d 207, 212 (quotations omitted).

21-CA-65 C/W 21-C-48 6

The district court performs the important gatekeeping role of ensuring “that

any and all scientific testimony or evidence admitted is not only relevant, but

reliable.” Blair v. Coney, 19-0795, p. 5 (La. 4/3/20), 2020 WL 1675992 (quoting

Cheairs v. State ex rel. Dep’t of Transp. & Dev., 03-680 (La. 12/3/03), 861 So.2d

536, 541).

C.E. art. 702(A)(2) and C.E. art. 702(A)(4) are grounded in the longstanding

principle recognized in Daubert that the determination of whether an expert’s

testimony is admissible requires an assessment of “whether that reasoning or

methodology properly can be applied to the facts in issue.” Blair v. Coney, supra,

(quoting Daubert, 509 U.S. at 592–593, 113 S.Ct. 2786).

A review of the record shows that at trial, Dr. Bain expressed his medical

causation opinion that Ms. Pollard: (1) was not subjected to forces and accelerations

that would cause any structural alteration to her cervical spine or shoulders; (2) did

not suffer a TBI (traumatic brain injury); and (3) may have experienced muscle

strains that would have abated within days to weeks regardless of her medical

treatment.

He further opined that there was no mechanism during this accident to cause

Ms. Pollard to sustain a shoulder injury or a labral injury/tear, and that she was not

subject to any significant shoulder loading. Dr. Bain also concluded that Ms.

Pollard’s torso was contacted and accelerated by her forward moving seat back

structure, and her head was likely contacted by her forward moving headrest.

Our Supreme Court recently addressed the admissibility of Dr. Bain’s

testimony in Blair v. Coney, supra. In that case involving a motor vehicle accident,

Dr. Bain opined that the plaintiff was involved in a low speed rear-end motor vehicle

collision that subjected him to minimal forces and accelerations and that “[h]e was

not subjected to forces and acceleration that would cause serious or long-lasting

injuries.” Id. at 8. Further, Dr. Bain opined, without reservation, that plaintiff’s

21-CA-65 C/W 21-C-48 7

injuries and treatments were not causally related to the subject event. Id. Upon

review, the Supreme Court held that Dr. Bain’s testimony was based on insufficient

facts or data, and thus failed to meet the requirement of C.E. art. 702(A)(2). Blair,

19-0795 at p. 9.

Specifically, the Supreme Court pointed out in Blair that the record was

replete with Dr. Bain’s opinions that were based on inadequate, speculative, and

unsubstantiated assumptions and conclusions. Blair, 19-0795 at pp. 8-9. The Court

pointed out that Dr. Bain did not (1) inspect either of the vehicles involved in the

collision at issue; (2) speak with the damage appraisers; (3) know plaintiff’s body

position at the time of the accident; (4) inspect plaintiff’s vehicle for variance from

the vehicle he rented that was the same make and model which was used to perform

the exemplar-surrogate inspection; or (5) interview the plaintiff. Id. The Supreme

Court explained that Dr. Bain calculated the impact of the collision on plaintiff’s

body based, in part, on photographs, vehicle repair estimates, and descriptions of the

accident by the parties. Id.

From the evidence and testimony presented at the trial of the case before us,

it is clear that Dr. Bain relied on this same methodology in reaching his conclusions

about Ms. Pollard’s injuries. In this instance, as in the Blair case, Dr. Bain reviewed

the police report, pictures of the vehicles, repair slips, and deposition testimony to

determine the extent of the damages to the vehicles involved in the collision. Just

as he did in Blair, Dr. Bain conducted an exemplar inspection using the exact make

and model vehicles involved in the accident to measure the parts and damages.

Further, at trial, Dr. Bain testified that he calculated the impact severity with the

change in velocity, that is delta-V, experienced by Ms. Pollard’s Ford was

approximately 4.5 mph and its peak acceleration approximately 2.5g.

Dr. Bain’s medical causation determination is based on the assumption that

Ms. Pollard experienced decreasing loads in the crash, which, in turn, is derived from

21-CA-65 C/W 21-C-48 8

his findings regarding the velocities of the vehicles and the loads resulting from the

crash. His findings are rooted, in part, on the results of tests performed by him and

his employees at BRC’s testing lab. Additionally, at trial, Dr. Bain testified that he

did not perform “any specific tests for this case,” and he simply relied on “data he

collected from hundreds of these (similar) tests,” specifically, “vehicles with front

bumpers and trailer hitches.”

As in the Blair case, Dr. Bain did not (1) inspect either of the vehicles involved

in the collision at issue; (2) speak with the damage appraisers; (3) know plaintiff’s

body position at the time of the accident; (4) inspect plaintiff’s vehicle for variance

from the vehicle he rented that was the same make and model which was used to

perform the exemplar-surrogate inspection; or (5) interview the plaintiff.

Defendants argue that the articles on which Dr. Bain relies have been peer-

reviewed. However, this does not mean that Dr. Bain’s methodology has been peer-

reviewed. On cross-examination, Dr. Bain acknowledged that most of the research

and articles that he has cited in his report was written by him or one of the employees

of BRC. The articles were submitted to support his findings regarding the bumper

crusher, quasi-static testing and validated with dynamic testing to determine the peak

vehicle acceleration in the June 22, 2015 accident.

In addition to our Supreme Court, several other courts within Louisiana have

excluded Dr. Bain’s expert testimony based upon his use of this same methodology.

See Godchaux v. Peerless Ins. Co., 13-1083 (La. App. 3 Cir. 6/4/14), 140 So.3d 817,

writ denied, 14-1411 (La. 10/3/14), 149 So.3d 801 (found Dr. Bain’s testimony did

not assist the jury in determining a fact in issue, reasoning that force-of-impact

testimony cannot be used to disprove causation, and ultimately, that the trial court

abused its discretion in permitting Dr. Bain to testify because his opinions and

methods were unreliable and “inherently suspect” without evidence of support from

the scientific community considering that Dr. Bain did not recreate the actual

21-CA-65 C/W 21-C-48 9

accident and only relied on a crash analysis of a different make and model to assess

the force asserted on the plaintiff’s vehicle, he did not testify as to the reliability or

potential errors in the crash analysis); Parker v. NGM Ins. Co., 15-2123, 2016 WL

3546325 (E.D. La. June 23 2016)(found Dr. Bain was qualified to testify as to

accident reconstruction but that his methods were unreliable and further held he

was not qualified to testify as to medical causation because he was not board

certified in a relevant specialty of medicine); Lascola v. Schindler Elevator Corp.,

08-4802, 2010 WL 971792 (E.D. La. Mar. 12, 2010); Breaud v. Werner Enterprises,

Inc., 03-860, 2006 WL 8432363 (M.D. La. Mar. 20, 2006)(found Dr. Bain’s

testimony was based on insufficient facts where Dr. Bain himself admitted there were

dents in the vehicle he could not see in the black and white photographs he

reviewed).

Like the Supreme Court in Blair and the courts cited above, we find that the

trial court erred in denying Ms. Pollard’s motion in limine to exclude the testimony

of Dr. Bain based on his use of a flawed methodology that fails to meet the

requirements of C.E. art. 702(A)(2). We further hold that the trial court abused its

discretion by permitting Dr. Bain to testify at trial when his opinions were based on

inadequate, speculative, and unsubstantiated assumptions and conclusions.

Generally, when the trial court makes evidentiary errors that are prejudicial,

such that they materially affect the outcome of the trial and deprive a party of

substantial rights, and if the record is otherwise complete, the appellate court will

conduct its own de novo review of the record. Melerine v. Tom’s Marine & Salvage,

LLC, 20-00571 (La. 3/24/21), 315 So.3d 806; see also La. C.E. art. 103(A).

However, our Supreme Court has recognized that in limited circumstances, when

necessary to reach a just decision and to prevent a miscarriage of justice, an appellate

court should remand the case to the trial court under the authority of Louisiana Code

of Civil Procedure article 2164, rather than undertaking de novo review. Id. (citing

21-CA-65 C/W 21-C-48 10

Wegener v. Lafayette Ins. Co., 10-0810 (La. 3/15/11), 60 So.3d 1220, 1233).

Whether a particular case should be remanded is largely within the court's discretion

and depends upon the circumstances of the case. Id. (citing Wegener, 60 So.3d at

1234).

Considering the foregoing evidence and facts in this instance, remand for a

new trial is just, legal, and proper. See La. Code Civ. Pro. art. 2164. The evidence at

issue was central to the defendant’s case since Dr. Bain was their primary expert

witness, and his methodology was heavily relied on to prove Ms. Pollard’s alleged

accident-related injuries were not caused by the June 22, 2015 collision. Ms. Pollard

objected to the evidence in pre-trial motions and at trial. As our Supreme Court

discussed in Melerine, the parties proceeded to a jury trial in reliance on those

rulings, which we now find to be erroneous. 315 So.3d at 822. The rulings

undoubtedly affected trial strategy and witness selection by both sides. Thus,

remanding for a new trial rather than conducting a de novo review is warranted.

Remanding this matter for a new trial is further warranted considering we

cannot determine the weight the jury accorded to Dr. Bain’s testimony in reaching

its conclusion that Ms. Pollard was not entitled to damages. In Cleland, the Third

Circuit held that remand was appropriate when the trial judge improperly admitted

the testimony of an expert on biomechanics when the defendants failed to establish

the evidentiary reliability of the tests performed and the methodology in determining

the possible injury to a person involved in a side-impact collision as required by

Daubert. Cleland v. City of Lake Charles, 02-805 (La. App. 3 Cir. 3/5/03), 840 So.2d

686, 696, writ denied, 03-1380 (La. 9/19/03), 853 So.2d 644, and writ denied, 03-

1385 (La. 9/19/03), 853 So.2d 645. The Court explained that it could not determine

the weight the jury gave to the expert’s testimony in deciding the damages to award

to plaintiff such that remand was appropriate. Id. at 689.

21-CA-65 C/W 21-C-48 11

Since we are remanding this matter for a new trial, for the reasons discussed

above, we pretermit addressing Ms. Pollard’s remaining assignments of error and

further, declare as moot the issue of assigning costs in her writ application.

DECREE

For the reasons assigned herein, the trial court ruling that denied the exclusion

of Dr. Charles E. Bain’s testimony is reversed, the judgment entered on the jury

verdict is vacated, and the matter is remanded for a new trial consistent with this

opinion.

JUDGMENT VACATED AND REMANDED

21-CA-65 C/W 21-C-48 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
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C/W 21-C-48
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
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