Blaze D'Aquin and Taylor D'Aquin Versus Perry Badeaux

BLAZE D'AQUIN AND TAYLOR D'AQUIN NO. 24-C-21

VERSUS FIFTH CIRCUIT

PERRY BADEAUX, ET AL COURT OF APPEAL

STATE OF LOUISIANA

March 22, 2024

Susan Buchholz
Chief Deputy Clerk

IN RE BLAZE D'AQUIN AND TAYLOR D'AQUIN

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE NANCY A. MILLER,
DIVISION "I", NUMBER 819-345

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, Jude G. Gravois, John J. Molaison, Jr., and Scott U. Schlegel

WRIT GRANTED

Plaintiffs, Blaze and Taylor D’Aquin, seek review of the trial court’s

December 13, 2023 judgment, which granted defendant RPM Pizza Greater New

Orleans, LLC’s (“RPM”) “Motion in Limine to Exclude Untimely Produced

Medical Records.” In its judgment, the trial court excluded records and

corresponding testimony from Mr. D’Aquin’s neurologist, Dr. Anne Foundas,

which plaintiffs produced after the expiration of the discovery deadline and shortly

before the first trial date. For the following reasons, we grant the writ application,

reverse the trial court’s ruling, and remand for further proceedings.

Plaintiffs allege that on May 30, 2021, Mr. D’Aquin suffered injuries,

including a brain injury, when defendant, Perry Badeaux, disregarded a stop sign

and collided with Mr. D’Aquin’s motorcycle. Plaintiffs allege that Mr. Badeaux

was in the course and scope of his employment with RPM at the time of the

24-C-21

accident. RPM contests liability and damages arguing that Mr. D’Aquin was

travelling at a high rate of speed and that his injuries are not as serious as claimed.

This matter was set for a jury trial on Monday, September 11, 2023. On

Friday, September 8, 2023, the defense learned that Mr. D’Aquin had undergone

additional testing when plaintiffs’ counsel emailed defense counsel a new report

and records from Dr. Foundas. On Sunday, September 10, 2023, RPM filed a

motion in limine seeking to exclude the new medical records and report, as well as

corresponding testimony from Dr. Foundas, as untimely. RPM argued that the

only records plaintiffs had previously produced from Dr. Foundas were for a single

visit, which occurred four months after the accident in September 2021. RPM

claimed that it was prejudiced by the late disclosure, because it would not have

time to verify the records, provide them to its own expert, or conduct additional

discovery.

On the morning of September 11, 2023, trial was continued and reset to

Monday, May 13, 2024, because the ad hoc judge presiding at that time could not

serve for the entire duration of the trial. RPM’s motion in limine was set for

hearing on December 7, 2023. The ad hoc judge also entered a new pre-trial order

at the time, stating that discovery would remain closed, but that the discovery

cutoff date “may be modified by consent of all parties.”

In their opposition to the motion in limine, plaintiffs argued that the experts

for both sides agreed that the persistence of neurological deficits beyond two years

after a traumatic event is significant, and that the follow-up testing and evaluation

were performed to determine Mr. D’Aquin’s status at the two-year point. Plaintiffs

asserted that RPM was not prejudiced by the late disclosure due to the continuance

of the trial date.

RPM replied that it would be prejudiced if the trial court allowed the new

evidence from Dr. Foundas, because it would have to incur additional expenses to

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address the results of the new testing. RPM pointed out that plaintiffs were ready

to proceed to trial without this evidence and the only reason for the continuance

was the unavailability of the court.

At the conclusion of the hearing on December 7, 2023, the trial court granted

RPM’s motion in limine and excluded Dr. Foundas’ new report and corresponding

testimony. It signed a written judgment granting the motion on December 13,

2023.

Trial courts have great discretion when ruling on evidentiary matters, such

as a motion in limine. Anderson v. Bd. of Sup'rs of Louisiana State Univ. & Agr. &

Mech. Coll., 06-153 (La. App. 5 Cir. 10/17/06), 943 So.2d 1198, 1202. Further,

La. C.C.P. art 1551 provides the trial court with great discretion in implementing

pre-trial orders and ensuring that the particulars are enforced. Cobena v. ACE Am.

Ins. Co., 21-630 (La. App. 5 Cir. 8/3/22), 347 So.3d 1117, 1125, writ denied, 22-

1337 (La. 11/16/22), 349 So.3d 1007.

The theory inherent behind pre-trial procedure is avoiding surprise and

ensuring orderly disposition of the case. Moonan v. Louisiana Med. Mut. Ins. Co.,

16-113 (La. App. 5 Cir. 9/22/16), 202 So.3d 529, 533, writ denied, 16-2048 (La.

1/9/17), 214 So.3d 869. A pre-trial order controls the subsequent course of the

action, but can be modified to prevent manifest injustice. La. C.C.P. art. 1551;

Perniciaro v. Hamed, 20-62 (La. App. 5 Cir. 12/16/20), 309 So.3d 813, 833.

Absent an abuse of discretion, the trial court's decision to admit or exclude

evidence upon objection on the grounds of failure to abide by the pre-trial order

will be upheld. Cobena, 347 So.3d 1125-26.

While the trial judge has great discretion in deciding whether to receive or

refuse testimony objected to on the grounds of failure to abide by the pre-trial

order, any doubt is resolved in favor of receiving the information. Perniciaro, 309

So.3d at 833; Moonan, 202 So.3d at 533. This Court has stated, “[i]n deciding

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whether to modify a pretrial order, a trial court must be ever mindful of the fact

that the objective of our legal system is to render justice between litigants upon the

merits of the controversy rather than to defeat justice upon the basis of

technicalities.” Henderson on behalf of Rolland v. Ruffino, 17-158 (La. App. 5 Cir.

10/25/17), 231 So.3d 912, 922.

After review of the writ application, opposition, exhibits, and the applicable

law, we find that the trial court abused its discretion by granting RPM’s motion in

limine. If trial had proceeded on September 11, 2023, as scheduled, RPM would

have been unfairly prejudiced by the late disclosure of Dr. Foundas’ new report

and corresponding testimony, and the exclusion of such would have been

warranted. However, due to no fault of the parties, the trial was continued for

several months, thereby negating the element of surprise and allowing ample time

for additional discovery, if necessary.

Further, plaintiffs contend that Mr. D’Aquin sustained a brain injury as a

result of the May 2021 accident, and the parties dispute the severity and duration of

Mr. D’Aquin’s injuries. Dr. Foundas was not new to the case. She examined Mr.

D’Aquin on September 24, 2021, and prepared a report of her findings and

impressions. A neuropsychologist, Dr. Anneliese Boettcher, reviewed Mr.

D’Aquin’s records and issued a report dated June 12, 2023, with her findings and

impressions. Although RPM was not aware of Dr. Foundas’ updated September

2023 report until shortly before the original trial date, the continuance allowed time

for discovery pertaining to her updated report.

Considering that the element of surprise has been removed and that any

doubt should be resolved in favor of receiving the information, we find that the

trial court abused its discretion by granting RPM’s motion in limine and excluding

Dr. Foundas’ updated report and corresponding testimony from trial. Accordingly,

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we grant the writ application, reverse the trial court’s judgment that granted RPM’s

motion in limine, and remand for further proceedings.

Gretna, Louisiana, this 22nd day of March, 2024.

FHW
SMC
JGG

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BLAZE D'AQUIN AND TAYLOR D'AQUIN NO. 24-C-21

VERSUS FIFTH CIRCUIT

PERRY BADEAUX, ET AL COURT OF APPEAL

STATE OF LOUISIANA

SCHLEGEL, J., DISSENTS WITH REASONS

I respectfully dissent. This matter was set for a jury trial on Monday,

September 11, 2023. But on Friday, September 8, 2023, only days before the trial

was set to begin, plaintiffs’ counsel emailed the defense a new report and records

from Dr. Foundas, showing that Mr. D’Aquin had recently undergone additional

testing. As expected, RPM filed a motion in limine seeking to exclude the new

medical records and report, as well as corresponding testimony from Dr. Foundas.

On the morning of trial, the ad hoc judge presiding continued the trial and set the

motion in limine for hearing. The trial judge heard arguments on December 7,

2023 and granted the defendant’s motion in limine.

The majority recognizes the trial court’s vast discretion when ruling upon

evidentiary issues but then goes on to suggest that since “the element of surprise

has been removed,” the trial court somehow abused its discretion when it excluded

the new evidence. But this opinion fails to take into account the fact that the

additional testing could have been completed prior to the discovery deadline and

well before the prior trial date. The two-year mark following the injury was May

30, 2023, which was 3 months before the September 11th trial date. And the

plaintiff wasn’t re-examined until September 5, 2023, only 6 days before trial was

set to begin. The trial court clearly took all of this into account when making its

decision.

24-C-21

As a court of review, we are not to ask would we have ruled differently if we

had been asked to make the decision, but whether or not the trial court abused its

discretion. Considering the unique circumstances presented in this matter, as well

as the trial court’s broad discretion, I cannot say the trial court was clearly wrong

and would find that the trial court did not abuse its discretion by granting the

RPM’s motion in limine.

Accordingly, this writ application should be denied and therefore, I dissent.

SUS

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BLAZE D'AQUIN AND TAYLOR D'AQUIN NO. 24-C-21

VERSUS FIFTH CIRCUIT

PERRY BADEAUX, ET AL COURT OF APPEAL

STATE OF LOUISIANA

MOLAISON, J., DISSENTS WITH REASONS

I agree with Judge Schlegel’s well-reasoned dissent. The continuance in

this matter was a necessity for the trial judge. In my opinion, had the court not

excluded the last-minute testimony out of fairness, then the continuance would

have benefited one party over the other. Under similar circumstances, this Court

has affirmed the trial court’s ruling. See Dufrene v. Willingham, 97-1239 (La.

App. 5 Cir. 10/28/98), 721 So. 2d 1026, writ denied, 99-0032 (La. 3/12/99), 739

So. 2d 212. Granting the writ would have the effect of overruling the trial

court’s authority to control its own docket, including its ability to regulate pre-

trial discovery. For these reasons, I respectfully dissent.

JJM

24-C-21

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

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TIMOTHY S. MARCEL FIFTH CIRCUIT
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