Joseph Davis v. Christie Wheeler and State Farm Mutual Automobile Insurance Company

Judgment rendered March 4, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,233-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

JOSEPH DAVIS Plaintiff-Appellant

versus

CHRISTIE WHEELER AND Defendants-Appellees
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY

*****

Appealed from the
Fourth Judicial District Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2014-1448

Honorable Alvin R. Sharp, Judge

*****

THE HAYES LAW FIRM, PLC Counsel for Appellant
By: DaShawn P. Hayes

DAVENPORT, FILES & KELLY, L.L.P. Counsel for Appellees
By: Carey B. Underwood

*****

Before WILLIAMS, PITMAN, and THOMPSON, JJ.

PITMAN, J.

Plaintiff-Appellant Joseph Davis appeals the trial court’s judgments in

favor of Defendants-Appellees Christie Wheeler and State Farm Mutual

Automobile Insurance Company (“State Farm”). For the following reasons,

we affirm.

FACTS

On May 15, 2014, Davis filed a petition for damages against Wheeler

and her insurer State Farm. He alleged that on May 16, 2013, he was

operating a 2008 Ford truck owned by his employer and was stopped at a red

light when a 2008 Toyota Prius owned and driven by Wheeler rear-ended his

truck with “tremendous force.” He contended that Wheeler caused the

collision and caused severe injuries, expenses and damages to him.

On June 2, 2014, Defendants filed an answer. They admitted that a

“very minor” traffic collision occurred on May 16, 2013, and that the

collision was caused by the fault of Wheeler. They denied the remaining

allegations, including that Davis was injured in the collision. On June 24,

2014, they filed a stipulation admitting that Wheeler was at fault for the

collision, but noted that they were in no way admitting causation of any

bodily injury to Davis.

On August 10, 2015, Davis filed a motion in limine seeking to

prohibit evidence of prior accidents and of force of impact. He also filed a

motion to strike Richard Baratta, Ph.D., as a witness for the defense

regarding force-of-impact evidence. He contended that Dr. Baratta was not

qualified to provide expert opinions regarding medical causation because he

was not a medical doctor, but, instead, had a Ph.D. in engineering.

On September 2, 2015, Defendants filed an opposition to Davis’s

motion in limine. They argued that evidence of prior accidents is admissible

in a personal injury case. They contended that evidence of force of impact is

relevant in cases regarding disputed injuries. They also filed an opposition

to Davis’s motion to strike. They contended that the sole issue in this case

was whether the “small bump” of the collision caused any injury to Davis

and that they hired Dr. Baratta to rebut the testimony of Davis’s expert.

A hearing on the motion in limine and motion to strike was held on

September 8, 2015; and, on September 28, 2015, the trial court filed a

judgment. It granted the motion in limine to prohibit any reference to two

prior accidents of August 2012 and January 2013. It granted the motion to

strike to the limited extent that Dr. Baratta was ordered not to testify as to

any issues relating to the medical causation of Davis’s injuries.

On October 5, 2015, Defendants filed a notice of intent to apply for

supervisory writs for review of the trial court’s judgment on the motion in

limine and the motion to strike. On January 28, 2016, this court denied the

writ as to the motion in limine regarding prior-accident evidence. Noting

that force-of-impact testimony is a relevant factor in low-impact collision

cases, this court granted the writ as to the motion to strike and remanded the

matter to the trial court for a hearing to determine which portions of

Dr. Baratta’s opinions and conclusions were admissible.

On October 10, 2017, Davis filed a motion in limine, requesting that

the court exclude testimony and evidence concerning liability of the

collision, including, but not limited to, testimony and evidence concerning

force of impact. Defendants filed an opposition to this motion.

2

On October 11, 2017, a Daubert hearing was held at which

Dr. Baratta testified. On October 18, 2017, the trial court filed a judgment

that Dr. Baratta was qualified to render opinions in the field of biomechanics

and accident reconstruction. It stated that Dr. Baratta was not allowed to

give any opinions or testimony regarding medical causation.

On January 10, 2018, State Farm filed a motion for rehearing on the

prior ruling on the motion in limine concerning prior-accident evidence. On

January 30, 2018, Davis filed an opposition to State Farm’s motion and

argued that this issue was barred by res judicata and the law of the case.

On February 5, 2018, a hearing was held on the motions in limine.1

On February 20, 2018, the trial court filed a judgment. It denied Davis’s

motion in limine regarding force-of-impact evidence. It granted in part and

denied in part State Farm’s motion for rehearing and stated that Defendants

would be allowed to present evidence of Davis’s January 2013 automobile

accident but not of his 2012 automobile accident.

Jury selection began on March 19, 2018, and the jury trial began on

March 21, 2018.2

Dr. Arnold Harris, a chiropractor, testified that he treated Davis for his

complaints of neck pain that radiated to the right upper extremity,

headaches, mid-back pain and lower-back pain that radiated to the left and

right lower extremities. Davis told him that the onset of his injuries was a

1
On February 12, 2018, Davis filed a notice of intent to apply for a supervisory
writ to review the trial court’s February 5, 2018 judgment regarding the motions in
limine. On March 14, 2018, this court did not consider the writ because the application
lacked documentation of the ruling for which he sought review.
2
On March 23, 2018, Defendants filed a peremptory exception of no cause and/or
right of action. They moved that the action against Wheeler be dismissed because she
was deceased. They stated that the proper party is the succession representative.
3

May 16, 2013 automobile collision. He first saw Davis on May 20, 2013.

His initial diagnosis of Davis was cervical sprain/strain, cervical radiculitis,

headaches, lumbar sprain/strain, lumbar radiculitis, stiffness, restricted

ranges of motion in the lumbar spine, thoracic sprain/strain and deep spasms

throughout the spine. He suggested a treatment plan of chiropractic

manipulation and scheduled two visits per week with Davis for the next 12

to 16 weeks. On subsequent visits, Davis stated that he was still in pain. On

September 6, 2013, he referred Davis for an MRI of the cervical and lumbar

spine. He reviewed the MRI results with Davis, which showed some disc

pathology and foraminal stenosis, and referred him to Dr. Kenneth Vogel, a

neurosurgeon. He testified that it was his professional opinion that it is more

likely than not that the injury sustained by Davis was caused by the May 16,

2013 collision.

In a video deposition, Dr. Vogel testified that he first evaluated Davis

on September 20, 2013, for cervical and bilateral arm pain and lumbosacral

and bilateral leg pain. He noted that Davis reported having been in good

health until the May 16, 2013 collision when he “was thrown about and

dazed momentarily and noted immediate cervical and lumbar pain.” Davis

denied prior injuries, but did note another automobile accident in 2012 or

2013. He detailed his evaluation of Davis, found abnormalities in his neck

and lower back and diagnosed him with a Grade 1 concussion. He testified

that “in all medical probability, the signs and symptoms are causally related”

to the May 16, 2013 collision. On November 11, 2013, Davis had a lumbar

discogram CAT scan, which showed that a disc herniation at L4-L5 was

causing his lower-back pain. Dr. Vogel then performed a microsurgical

discectomy, a laminectomy and a lumbar epidural block on Davis. Six
4

weeks after surgery, Davis still complained of lower-back pain, so he

ordered physical therapy. He opined that a traumatic event, such as a rear-

end collision, could cause a disc to herniate.

Dr. Vincent Forte, who is board-certified in anesthesiology and pain

medicine, testified that Davis first presented to him on July 24, 2014, with

the chief complaint of lower back pain. Following a physical examination,

he opined that Davis possibly had post-laminectomy syndrome, i.e., lower-

back pain following his lumbar surgery. Based on MRIs taken before and

after Davis’s November 2013 surgery, he recommended a diagnostic nerve

block and performed two procedures on Davis in August 2014. In October

2014, Davis stated that he was pleased with the nerve block injections, but

that he continued to have lumbar pain. When Davis’s attorney asked

Dr. Forte if the May 16, 2013 collision caused Davis’s pain and injury,

Dr. Forte responded that based on Davis’s medical history from Dr. Vogel

and the history that Davis provided to him, the pain symptoms did not start

until after the accident. On cross-examination, Dr. Forte stated that without

relying on Dr. Vogel, he could not say that it was more likely than not that

his treatment of Davis was caused by the May 16, 2013 collision.

Davis testified that at the time of the collision, he worked for O’Reilly

Auto Parts delivering parts between stores. He stated that on May 16, 2013,

he was in his company truck and stopped at a traffic light when he heard a

loud bang and temporarily blacked out. When he came to, he discovered

that his truck had been rear-ended by Wheeler. He stated that he

immediately felt pain in his neck, lower back and lower extremities and

described the pain in his lower back as “extreme.” He finished the work day

and worked through the pain. Noting that he did not have health coverage,
5

he stated that the day after the collision, he called an attorney, who

recommended that he see Dr. Harris. After several months of treatment with

Dr. Harris, his pain was not relieved and was aggravated by physical

movement. He then met with Dr. Vogel and had surgery. He stated that he

still felt sharp pains eight months after surgery and was not able to return to

work until over a year after surgery. He described the negative effects that

the surgery and pain medicine had on his life. He underwent six weeks of

physical therapy and then went to Dr. Forte for pain management. The

injections he received from Dr. Forte provided him with relief for a short

period of time. He stated that at the time of trial he still had pain from time

to time.

Davis further testified that in January 2013, he was involved in a one-

car accident when he hit a concrete block at a carwash. He stated that his

neck and lower back bothered him for a few days after the accident, but he

never saw a doctor or made an insurance claim for any injuries sustained.

He did not recall telling Dr. Harris, Dr. Vogel or Dr. Forte about the

January 2013 accident.

Davis rested his case in chief, and the defense presented its witnesses.

In Wheeler’s deposition, she testified that on May 16, 2013, she was

stopped at a red traffic light in her Toyota Prius behind Davis’s truck. She

was looking down when she saw the car next to her move forward, so she

began to move her car forward at a speed of no more than “one or two miles

an hour.” Her car then rear-ended Davis’s truck. She put her car in park,

got out of her car and walked to Davis’s door to ask if he was okay. He

responded that he was okay, but was “just a little shook up.” She then called

the police department, and she and Davis moved their automobiles to a
6

parking lot. Wheeler stated that her Prius did not sustain any damage in the

collision. She noted that the bumper of Davis’s truck was pushed down

prior to the impact of the collision.

David Vandergracht, an independent automobile appraiser, testified

that on December 18, 2012, he inspected a Ford Ranger truck at O’Reilly

Auto Parts. He noted that the bumper of this truck was pushed downward

toward the ground. The license plate number and the vehicle identification

number of the truck inspected by Vandergracht matched that of the truck

involved in the May 16, 2013 collision.

Dr. Baratta, an expert in the field of biomechanical engineering and

accident reconstruction, testified that he reviewed the May 16, 2013

collision, which included an inspection of Wheeler’s Prius. The only

damage he noted on the Prius’s bumper was a small, thin horizontal line in

the paint. He noted that there was no damage to the Prius’s Styrofoam front

bumper absorber, meaning that there was not sufficient contact force to

deform it. He stated that the contact force would not have been sufficient to

break the friction between Davis’s truck’s tires and the ground, i.e., that the

body of the truck would rock forward and back, but the wheels would not

move. When asked by defense counsel if any occupant in Davis’s truck

should have been injured as a result of the “bump” of the collision, Dr.

Baratta responded, “You would not expect that a person that undergoes

those dynamics would have any injuries.” He stated that he had no opinion

as to whether Davis sustained an injury in the collision.

The defense rested, and Davis presented his rebuttal. Dr. David J.

Barczyk, an expert in chiropractic care and crash biomechanics, testified that

he conducted a biomechanical evaluation of Davis, which included
7

reviewing his medical history. He also considered the energy transfer

between the automobiles involved in the May 16, 2013 collision and the

condition of the automobiles after the collision. Dr. Barczyk stated that it

was his opinion that Davis was injured in the collision.

On March 23, 2018, the jury found that Davis had not proved by a

preponderance of the evidence that he sustained injuries that were caused by

the collision of May 16, 2013. On April 3, 2018, the trial court signed a

judgment in favor of Wheeler and State Farm, dismissing all of Davis’s

claims with prejudice.

On April 27, 2018, Davis filed a motion for new trial. He argued that

the verdict was contrary to the law and evidence and explained that it was

illogical for the jury to find that his injuries were not caused by the collision

as there was sufficient medical evidence to prove the same. He contended

that to receive no compensation for his injuries was infuriating and to

suggest that he suffered no pain, hardship or inconvenience was egregious.

On June 26, 2018, State Farm filed an opposition to the motion for

new trial and argued that the jury’s verdict was well grounded on facts and

the law.

On July 30, 2018, a hearing was held on the motion for new trial. On

August 27, 2018, the trial court filed a ruling denying the motion. It noted

that no peremptory grounds existed for the granting of a new trial and that

no basis existed for exercising its discretion to grant a new trial.

Davis appeals the trial court’s April 3 and August 27, 2018

judgments.

8

DISCUSSION

Motion for Rehearing

In his first assignment of error, Davis argues that the trial court

erroneously granted Defendants’ motion for rehearing on the prior ruling on

the motion in limine concerning prior-accident evidence when this court

denied a writ on the matter and Defendants failed to raise any new issues for

consideration by the trial court. In the alternative, Davis maintains that the

evidence of his prior accidents was prejudicial and irrelevant.

State Farm argues that the trial court properly reconsidered the prior

ruling and allowed the admission of evidence concerning Davis’s accident

that occurred four months prior to the collision at issue. It contends that the

prior ruling on the motion in limine was an interlocutory judgment that

could be reconsidered or revised by the trial court prior to trial.

A judgment that does not determine the merits but only preliminary

matters in the course of the action is an interlocutory judgment. La. C.C.P.

art. 1841. A motion in limine presents an evidentiary matter that is subject

to the great discretion of the trial court. Heller v. Nobel Ins. Grp., 00-0261

(La. 2/2/00), 753 So. 2d 841; Taylor v. Dowling Gosslee & Assocs., Inc.,

44,654 (La. App. 2 Cir. 10/7/09), 22 So. 3d 246, writ denied, 09-2420 (La.

2/5/10), 27 So. 3d 299. It is well-settled that prior to final judgment, a trial

court may change the result of interlocutory rulings it finds to be erroneous.

VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La. 11/28/01), 801 So. 2d 331.

Except as otherwise provided by law, all relevant evidence is

admissible. La. C.E. art. 402. “Relevant evidence” means evidence having

any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be
9

without the evidence. La. C.E. art. 401. Although relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues or misleading the jury, or by

considerations of undue delay or waste of time. La. C.E. art. 403. Evidence

of prior injury and claims is admissible insofar as it bears on any issue

before the court. Pratt v. Culpepper, 49,627 (La. App. 2 Cir. 2/27/15),

162 So. 3d 616. The trial court has great discretion in determining the

relevancy and probative value of evidence and in striking the balance

between relevancy and prejudicial effect, and its determinations will not be

overturned absent a finding of a clear abuse of discretion. Williams v. Bd. of

Sup’rs of Univ. of La. Sys., 48,763 (La. App. 2 Cir. 2/26/14), 135 So. 3d 804,

writ denied, 14-0666 (La. 5/2/14), 138 So. 3d 1249.

In this case, the trial court’s first ruling on the motion in limine was an

interlocutory judgment. When this court denied supervisory writs on the

issue of prior-accident evidence, the judgment remained an interlocutory

judgment that could be reconsidered rather than became a final judgment

that could not be modified. See Tolis v. Bd. of Sup’rs of La. State Univ.,

95-1529 (La. 10/16/95), 660 So. 2d 1206. Therefore, the trial court had the

authority to reconsider the judgment.3

Davis placed his history of prior injuries and accidents at issue by

claiming personal injury damages. The trial court weighed the probative

value of the prior-accident evidence against the danger of its prejudicial

effect in conformity with La. C.E. art. 403. Noting the proximity of Davis’s

3
We note that in the motion for rehearing, State Farm incorrectly stated that this
court “refused to hear the issue” of prior-accident evidence when, in fact, this court
denied the writ regarding prior-accident evidence “on the showing made.”
10

prior accidents to the May 2013 collision, it determined that only the January

2013 accident was admissible. Therefore, the trial court did not abuse its

discretion when it determined that the evidence of Davis’s prior accident in

January 2013 was relevant and admissible pursuant to La. C.E. art. 403.

Accordingly, this assignment of error lacks merit.

Jury’s Verdict

In his second assignment of error, Davis argues that the jury

erroneously rendered a verdict that he did not prove by a preponderance of

evidence that he sustained injuries that were caused by the collision. He

contends that all of his treating physicians causally related his injuries to the

collision, that he presented expert testimony of an engineer who opined that

his injuries occurred from the collision and that Defendants did not present

any medical evidence or testimony to controvert the findings of his treating

physicians. He states that he proved by a preponderance of the evidence that

his injuries were caused by the collision and that it is inconceivable,

illogical, irrational and egregious for the jury to find otherwise when there

was sufficient medical evidence to prove causation.

State Farm argues that the jury properly considered the testimony and

credibility of the witnesses and evidence and acted appropriately in rejecting

the testimony of the healthcare providers and Dr. Barczyk.

In a personal injury lawsuit, the plaintiff has the burden of proving by

a preponderance of the evidence a causal connection between the accident

and injuries. Maranto v. Goodyear Tire & Rubber Co., 94-2603 (La.

2/20/95), 650 So. 2d 757; Swayze v. State Farm Mut. Auto. Ins. Co., 49,079

(La. App. 2 Cir. 10/21/15), 184 So. 3d 81. The plaintiff satisfies this burden

by proving through medical and lay testimony that it was more probable
11

than not that the injury was caused by the accident. Maranto v. Goodyear

Tire & Rubber Co., supra; Swayze v. State Farm Mut. Auto. Ins. Co., supra.

The plaintiff is aided in his burden of proving causation by the presumption

described in Housley v. Cerise, 579 So. 2d 973 (La. 1991), in which the

Louisiana Supreme Court stated:

[a] claimant’s disability is presumed to have resulted from an
accident, if before the accident the injured person was in good
health, but commencing with the accident the symptoms of the
disabling condition appear and continuously manifest
themselves afterwards, providing that the medical evidence
shows there to be a reasonable possibility of causal connection
between the accident and the disabling condition.

Id., quoting Lucas v. Ins. Co. of N. Am., 342 So. 2d 591 (La. 1977).

Whether an accident caused a person’s injuries is a question of fact,

and an appellate court may not set aside a finding of fact made by a judge or

jury in the absence of manifest error or unless it is clearly wrong. Rosell v.

ESCO, 549 So. 2d 840 (La. 1989); Mulreany v. Williams, 41,569 (La. App.

2 Cir. 12/13/06), 945 So. 2d 291.

When the findings by the trier of fact are based on credibility, respect

must be given to the fact finder’s determination, for only the fact finder can

be aware of the variations in demeanor and tone of voice that bear so heavily

on understanding and believing what is said. Meneweather v. Shelter Ins.

Co., 43,109 (La. App. 2 Cir. 3/19/08), 978 So. 2d 1243.

In the case sub judice, Davis had the burden of proving by a

preponderance of the evidence a causal connection between the May 16,

2013 collision and his injuries. Davis does not benefit from the Housley

presumption because he did not show (1) that he was in good health prior to

the accident at issue; (2) that subsequent to the accident, symptoms of the

alleged injury appeared and continuously manifested themselves afterward;
12

and (3) through evidence, either medical, circumstantial or common

knowledge, a reasonable possibility of causation between the accident and

the claimed injury. Byrnside v. Hutto, 47,685 (La. App. 2 Cir. 2/27/13),

110 So. 3d 603. As the burden of proof was on Davis, Defendants did not

have to present any evidence to controvert his witnesses and evidence.

The jury had the ability to accept or reject the testimony of Davis and

his experts, and it clearly rejected Davis’s theory of causation and the

medical history he provided to his experts. Respect must be given to the

jury’s credibility determinations. Further, the jury was not manifestly

erroneous or clearly wrong in its rejection of Davis’s theory of causation.

Accordingly, this assignment of error lacks merit.

Motion for New Trial

In his third assignment of error, Davis argues that the trial court

erroneously denied his motion for new trial. He states that the jury failed to

award any damages even though a plethora of medical evidence and

testimony was presented to illustrate that it was more probable than not that

his injuries were caused by the subject collision.

State Farm argues that the trial court did not abuse its discretion in

denying Davis’s motion for new trial. It contends that the jury’s verdict was

not clearly contrary to the law and evidence, did not result in a miscarriage

of justice and was supported by a fair interpretation of the evidence.

La. C.C.P. art. 1972 sets forth the peremptory grounds for granting a

motion for new trial and states:

A new trial shall be granted, upon contradictory motion of any
party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to
the law and the evidence.

13

(2) When the party has discovered, since the trial, evidence
important to the cause, which he could not, with due diligence,
have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that
impartial justice has not been done.

La. C.C.P. art. 1973 sets forth the discretionary grounds for granting a

motion for new trial: “A new trial may be granted in any case if there is

good ground therefor, except as otherwise provided by law.” Although a

trial judge has much discretion in determining if a new trial is warranted, an

appellate court may set aside the ruling of the trial judge in a case of

manifest abuse of that discretion. Hickman v. Wm. Wrigley, Jr. Co., Inc.,

33,896 (La. App. 2 Cir. 10/4/00), 768 So. 2d 812.

For the same reasons the jury did not err in its verdict, the trial court

did not err in denying the motion for new trial. The verdict was not clearly

contrary to the law and the evidence, and the trial court did not abuse its

discretion when determining that a discretionary ground was not present to

warrant a new trial.

Accordingly, this assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgments in

favor of Defendants-Appellees Christie Wheeler and State Farm Mutual

Automobile Insurance Company and against Plaintiff-Appellant Joseph

Davis. Costs of appeal are assessed to Plaintiff-Appellant Joseph Davis.

AFFIRMED.

14