Janis Square v. Marjorie Leblanc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 04-1500

JANIS SQUARE

VERSUS

MARJORIE LEBLANC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2001-0051-K
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Glenn B. Gremillion, Billy Howard Ezell, and James T.
Genovese, Judges.

AFFIRMED.

Robert Ray Broussard
Craig Wesley Marks
Attorneys at Law
P. O. Drawer 80827
Lafayette, LA 70598-0827
(337) 232-3333
Counsel for Plaintiff/Appellant:
Janis Square

Thomas Reginald Hightower, Jr.
Patrick Wade Kee
P. O. Drawer 51288
Lafayette, LA 70505
(337) 233-0555
Counsel for Defendants/Appellees:
Shelter Insurance Company
Marjorie LeBlanc
GJL Investment Company

James D. Thomas, II
Wall, Thomas, Riche & Wall
P. O. Box 65168
Baton Rouge, LA 70896
(225) 928-0430
Counsel for Defendant/Appellee:
Randall D. Lea, M.D.

Kevin Paul Tauzin
Dozier & Tauzin
2901 Johnston Street, Suite 300
Lafayette, LA 70503
(337) 291-9292
Counsel for Intervenors/Appellees:
Kevin Paul Tauzin
Dozier & Tauzin

EZELL, JUDGE.

Janis Square appeals a jury verdict awarding her $19,000 for an automobile

accident. Asserting several legal errors, Square claims that her damages should be

increased or, in the alternative, Square claims the jury verdict should be reversed and

the case remanded to the trial court for a new trial.

FACTS

On January 7, 2000, Square was stopped at a red light in the City of Lafayette

at the intersection of Cameron Street and West University Avenue. Directly behind

her was a vehicle driven by Majorie LeBlanc. LeBlanc explained that her foot

slipped off the brake and she ran into Square’s vehicle.

Corporal Don Thibodeaux, a police officer with the City of Lafayette Police

Department, investigated the accident. He happened to be in the unique position of

having his vehicle positioned behind LeBlanc’s vehicle, also stopped for the red light

when the accident occurred. He testified that LeBlanc was stopped before the

accident, LeBlanc’s vehicle seemed to move forward, and he heard no audible

evidence of a collision.

Prior to this accident, Square had been involved in another accident on January

29, 1999, in which she was also rear-ended. She suffered a herniated disc in her neck

which required surgery in August 1999. Her surgery was performed by Dr. Luiz de

Araujo, a neurosurgeon, who last saw Square before the accident at issue on

December 15, 1999. He planned to release Square to full-duty work if she kept

progressing. Dr. de Araujo received a call from Square on January 7, 2000, informing

him of her recent accident. Square was concerned because she had a strain in her

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neck muscles where she had surgery a few months before. On February 2, Square

complained of lower back pain.

While Square’s neck strain resolved with no further problems, an MRI on

February 8, 2000, indicated a small central disc herniation at L5-S1. Dr. de Araujo

advised her to continue physical therapy and also referred her to Dr. Joseph Gillespie,

an anesthesiologist who provides chronic pain management.

Square began treatment with Cheryle Troxclair, a physical therapist, on January

20, 2000. On January 21, Square was reporting pain at her sacrum. By February 4,

the low back pain had worsened and was radiating into the right lower extremity to

the foot.

Dr. Gillespie saw Square on March 30, 2000. He noted complaints of lower

back pain, which was primarily right-sided with some bilateral foot and calf pain. He

injected the S1 joint.

On April 1, 2000, Square was traveling out-of-town, when she lifted her forty-

five pound son into the car. Square testified that her back gave out and she

experienced excruciating pain. She went to Sherman, north of Dallas, and sought

treatment in the Wilson N. Jones Medical Center emergency room. When she

returned home, Square went to see Dr. Gillespie on April 4.

Dr. Gillespie noted increased left leg pain. He observed that there was a

significant change from Square’s previous visit. Dr. Gillespie saw Square one final

time and attempted an epidural treatment.

Another MRI was performed on April 4, 2000. The MRI now indicated a large

ventral and left paracentral disc herniation at L5-S1 with posterior displacement of

the left S1 nerve root. Dr. Vidyadhar Akkaraju, a radiologist, testified that there were

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no changes in the right-sided component of the disc. He also stated that there was no

indication of a left-sided component on the earlier February 8 MRI. Although Dr.

Akkaraju classified this as a progression from the first MRI, he did testify that

something happened between February 8 and April 4.

Dr. de Araujo explained that it was common for a patient to have a herniated

disc and expel another piece of cartilage through the same opening, so he also opined

that this was progression of the herniation noted on the February 8 MRI.

There was also medical testimony from the defense that the herniation seen on

the April 4 MRI was a separate event. Dr. Curtis Partington, a neuroradiologist,

testified a tear in the disc will not go from one side to the other. He explained that

if the herniation is going to enlarge from the previous tear, it will occur on the same

side.

On June 13, 2000, Dr. de Araujo performed a lumbar microdiscectomy in

which he removed a small part of the bone and released the nerve. Dr. de Araujo

opined that Square would make a full recovery in due time. He released her to

medium work. Dr. de Araujo saw Square on January 6, 2003, at which time he did

not suspect instability of the spine and did not see an indication for a fusion from the

MRI conducted at that time.

Square then went to see Dr. Louis Blanda, an orthopedic surgeon, on February

18, 2003. He noted symptoms of pain in the lower back and pain and numbness in

the left leg. Dr. Blanda observed that there was past surgery, but he was of the

opinion that the disc space had collapsed. He performed a disc fusion at L5-S1 and

L4-5. Dr. Blanda testified that Square’s pain was eliminated with this surgery.

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Square filed suit on January 2, 2001, against LeBlanc and her employer, GJL

Investment Company, and its insurer, Shelter Mutual Insurance Company. Prior to

trial, it was stipulated that LeBlanc was at fault. Thereafter, trial was held on

damages from December 8 to December 18, 2003. The jury returned a verdict finding

that Square was injured as a result of the accident. It awarded her $10,000 for

physical and mental pain and suffering and disability. Past medical expenses were

awarded in the amount of $7,000, and lost past wages were awarded in the amount

of $2,000. Square appealed the verdict.

DAUBERT

Square challenges the testimony of two of the defense experts on appeal, that

of Dr. Monroe Laborde, an orthopedic surgeon and biomedical engineer, and also that

of Dr. Curtis Partington, a diagnostic neuroradiologist. Prior to trial, Square had filed

a motion in limine concerning both Drs. Laborde’s and Partington’s video deposition

testimony and, in the alternative, requested a hearing pursuant to Daubert v. Merrill

Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Square’s argument is that

neither doctor’s testimony was reliable to withstand a Daubert challenge.

Square challenged Dr. Laborde’s ability to testify on the issue of whether

Square’s lumbar disc injury was caused by the accident because he had not examined

Square, inspected either of the vehicles, or read the depositions of either Square or

LeBlanc.

Square also argues that Dr. Laborde’s testimony is unreliable because he relies

on a report from another expert that the defense hired but never introduced into

evidence. Dr. Martha Ketchum was a bio-mechanical/bio-medical engineer. She

prepared a report indicating the delta velocity of the Square vehicle. After reviewing

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Dr. Laborde’s testimony, we find that his overall testimony was about the effects of

low-impact accidents and the fact that no back injuries were reported in rear-end

collision tests up to fourteen miles per hour. There was no reliance on a specific set

of calculations regarding the speed or delta velocities of the vehicles. The overall

effect of Dr. Laborde’s testimony was that no back injury results from low-impact

collisions.

In his video deposition testimony, Dr. Laborde testified about changes in

velocity and the effect on the body. He authored a paper entitled Biomechanics of

Minor Automobile Accidents: Treatment Implications for Associated Chronic Spine

Symptoms which was published in the JOURNAL OF THE SOUTHERN ORTHOPAEDIC

ASSOCIATION, Volume 9, Number 3, Fall 2000, at 187-92. The defense presented Dr.

Laborde’s testimony that in a study of about 3000 reported cases, no one has ever

reported any low back symptoms in a rear-end collision up to fourteen miles per hour.

He explained that the neck is the most likely area to be injured because there is less

support in the vehicle for the neck than the rest of the spine. Dr. Laborde testified

that neither Square’s MRI nor biomedical engineering standards indicate a lumbar

disc injury from the January 7, 2000 accident. The jury also heard evidence that Dr.

Laborde did not examine Square and that it is not impossible to have an injury at low

impact, although a low probability.

Square also sought to exclude the medical causation opinion of Dr. Partington

because who likewise never examined Square or talked to her treating physicians. Dr.

Partington also testified by video deposition and his observations were the same as

most doctors. He testified that there was no evidence of left-sided problems on the

February 8 MRI and the April 4 MRI indicated left-sided disc herniation which was

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now compressing a nerve. He also agreed with Dr. de Araujo that the surgery in 2003

was not necessary because he could not identify an instability. The difference in Dr.

Partington’s opinion and that of the doctors offered by Square is his conclusion that

the indications on the two MRI’s are two separate and independent events rather than

a progression of the original herniation. He admitted that he does not examine the

patients.

A hearing on the motion in limine concerning the expert testimony was held

on December 9, 2003. Concerning Dr. Laborde’s testimony, the trial court denied the

motion finding that Dr. Laborde could give a “qualified conclusion, but not

unqualified. It’d have to be qualified based on the fact that he did not see the patient

or the vehicle.” Regarding Dr. Partington’s testimony, the trial court also denied the

motion stating, “It’s going to be the same thing as what my conclusion was on Dr.

Monroe Laborde. He cannot give an unqualified opinion about this accident cause

injury because he did not see this patient.”

The Supreme Court in Daubert, 113 S.Ct. 2786, examined the impact of the

adoption of Fed.R. Evid. 702 on the “general acceptance” test for determining the

admissibility of novel scientific evidence at trial established by Frye v. United States,

293 F. 1013 (1923). The court found that Frye was superceded by Article 702.

Louisiana Code of Evidence Article 702 follows the Federal Rule of Evidence Article

702.

Later, in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct.

1167, 1176 (1999), the Supreme Court explained the purpose of Daubert as follows:

The objective of that [Daubert’s gatekeeping] requirement is to ensure
the reliability and relevancy of expert testimony. It is to make certain
that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of

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intellectual rigor that characterizes the practice of an expert in the
relevant field. Nor do we deny that, as stated in Daubert, the particular
questions that it mentioned will often be appropriate for use in
determining the reliability of challenged expert testimony. Rather, we
conclude that the trial judge must have considerable leeway in deciding
in a particular case how to go about determining whether particular
expert testimony is reliable. That is to say, a trial court should consider
the specific factors identified in Daubert where they are reasonable
measures of the reliability of expert testimony.

In the present case, Square has not questioned the scientific basis or expertise

of Drs. Laborde’s and Partington’s opinions. She merely questions which

information the doctors utilized in coming to their conclusions. The testimony is no

different than their own expert Dr. Vidyadhar Akkaraju, a radiologist with a

subspecialty in neuroradiology, who never examined Square but testified that the

herniation he saw in the MRI from April 2000 was a progression from the herniation

seen in the February 2000 MRI.

The fact that the doctors neither examined Square nor the vehicles, or read the

parties’ depositions, or reviewed all the medical records goes to the weight and

credibility of each doctor’s testimony, not its admissibility, “and it is up to the

opposing party to examine the factual basis of the opinion in cross-examination.”

Rowe v. State Farm Mut. Auto. Ins., 95-669, p. 17 (La.App. 3 Cir. 3/6/96), 670 So.2d

718, 728, writ denied, 96-824 (La. 5/17/96), 673 So.2d 611 (citing Loudermill v. Dow

Chemical Co., 863 F.2d 566 (8th Cir.1988)). See also Ayres v. Beauregard Elec. Co-

op, Inc., 94-811 (La.App. 3 Cir. 9/6/95), 663 So.2d 127, writs denied, 95-2432, 95-

2434 (La. 12/15/95), 664 So.2d 455.

Square also argues that the testimony of Drs. Laborde and Partington were

cumulative with the testimony of Dr. Randall Lea, an orthopedic surgeon who

examined Square on August 29, 2002. Each of these expert witnesses offered by the

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defense had different qualifications and could offer a little more insight into the case

from their perspective.

For these reasons we find that the trial court was not required to conduct a

Daubert hearing in the case. We also find that the trial court properly admitted the

testimony of Drs. Laborde and Partington.

EXCESSIVE AND HARASSING OBJECTIONS

Square claims that the numerous objections lodge by defense counsel during

the course of the eight-day trial violated the parameters of La.Code Civ.P. art. 371

which provides, in pertinent part:

An attorney at law is an officer of the court. He shall conduct
himself at all times with decorum, and in a manner consistent with the
dignity and authority of the court and the role which he himself should
play in the administration of justice.

He shall treat the court, its officers, jurors, witnesses, opposing
party, and opposing counsel with due respect; shall not interrupt
opposing counsel, or otherwise interfere with or impede the orderly
dispatch of judicial business by the court; shall not knowingly
encourage or produce false evidence; and shall not knowingly make any
misrepresentation, or otherwise impose upon or deceive the court.

Square contends that the trial court’s failure to control defense counsel’s

conduct was an abuse of its discretion to conduct orderly proceedings pursuant to

La.Code Civ.P. art. 1631.

Reviewing the record, we observe that counsel for Square also made numerous

objections during the course of trial, in addition to several requests for mistrials and

sidebars. Both sides had objections that were sustained, and both sides had

objections that were overruled. Our review of the proceedings does not indicate that

one side over the other was prejudiced by opposing counsel’s conduct. We find no

merit to this argument.

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REDIRECT EXAMINATION

In brief Square states that the trial court prevented her from conducting redirect

examination of several witnesses by granting the defense’s objections to the alleged

repetitive nature of the redirect questions posed by her counsel. Square contends this

was an abuse of the trial court’s discretion.

Louisiana Code of Evidence Article 611(D) provides for the redirect

examination of a witness as follows:

Scope of redirect examination; recross examination. A witness
who has been cross-examined is subject to redirect examination as to
matters covered on cross-examination and, in the discretion of the court,
as to other matters in the case. When the court has allowed a party to
bring out new matter on redirect, the other parties shall be provided an
opportunity to recross on such matters.

Furthermore, Comment (k) to Article 611, citing well-established

jurisprudence, provides that the trial court has considerable discretion to allow or

disallow the parties to conduct redirect examination. Also see Brown v. Catalyst

Recovery of Louisiana, Inc., 01-1370 (La.App. 3 Cir. 4/3/02), 813 So.2d 1156.

Many of the redirect questions posed by Square’s counsel were repetitive of the

direct questions and not true redirect examination. We also observed that several

times the questions posed by Square’s counsel concerned matters that were not

matters that had been covered in cross-examination. Our review of the testimony

reveals that Square’s counsel was able to conduct a thorough direct and redirect

examination of the witnesses. We find no merit to this argument.

JURY INSTRUCTIONS

Square contends that jury charges on low-speed collisions and legal

presumptions prejudiced, misled, or confused the jury. She asks that we reverse the

jury’s decision based on these jury instructions.

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The trial court must give jury instructions that properly reflect the
law applicable to the facts of the particular case. Brown v. Diamond
Shamrock, Inc., 95-1172 (La.App. 3 Cir. 3/20/96); 671 So.2d 1049. To
fulfill this duty, the trial court must both insure that the jury considers
the correct law and, in giving the instructions, avoid confusing the jury.
Id.

Mathews v. Dousay, 96-858, p. 8 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 509.

In further elaborating on the duty of the courts in evaluating jury instructions,

this court in Mathews, 689 So.2d at 509-10 quoted from Iorio v. Grossie, 94-846, pp.

2-3 (La.App. 3 Cir. 10/4/95), 663 So.2d 366, 368-69(citations omitted)(alteration in

original):

A trial court should give all requested instructions
that correctly state the law, provided that they are material
and relevant to the litigation. Courts are not obligated to
give the specific jury instructions submitted by the parties,
but omission of a requested instruction containing an
essential legal principal [sic] may constitute reversible
error. A court has fulfilled its duty if its instructions fairly
and reasonably point out the issues presented by the
pleadings and evidence and provide the principles of law
necessary to resolve those issues.

An appellate court must exercise great restraint
before overturning a jury verdict on the basis of erroneous
instructions. Consequently, we will overturn the jury’s
verdict in the case sub judice on the basis of such an error
only if the instructions, taken as a whole, were so incorrect
or inadequate as to preclude the jury from reaching a
verdict based on the relevant law and facts. Ultimately, the
pertinent inquiry is whether the jury was misled to such an
extent as to be prevented from doing justice.

Square contends that trial court’s jury charge on low speed collisions was

incomplete. The trial court charged the jury that, “While the force of a collision may

be considered in determining whether a person was injured in an accident and the

extent of any injuries sustained, it should not be the only fact to consider when

making such a determination.”

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Square also complains about the trial court’s jury charge regarding

“presumption” wherein the trial court charged the jury that (emphasis supplied):

Plaintiff is aided in proving the causal relationship between the accident
and her injuries by the legal presumption that a claimant’s injury is
presumed to have resulted from the accident, if before the accident the
injured person was in good health, but commencing with the accident the
symptoms of the injury appear and continuously manifest themselves
afterwards, providing that the medical evidence shows there to be a
reasonable probability of causal connection between the accident and
the injury.

Square’s concern with this particular jury instruction was that the words

“commencing with the accident” was used as opposed to “shortly after the accident.”

Square recognizes that the distinction is subtle, but claims that the jury could have

believed that she was not entitled to a presumption of causation unless her low back

injuries commenced on the date of the accident.

We find that these instructions given by the trial court adequately reflect the

law and conveyed the issues to the jury without misleading it. See Housely v. Cerise,

579 So.2d 973 (La.1991) and Brown v. Trinity Universal Ins. Co., 01-1405 (La.App.

3 Cir. 4/3/02), 814 So.2d 747, writ denied, 02-1689 (La. 10/14/02), 827 So.2d 422.

Therefore, we find no merit to this argument.

DAMAGES

Square claims that the awards by the jury for general damages, medical

expenses, and lost wages are unsupported by the evidence presented at trial. As

previously stated, the jury awarded $10,000 in general damages, $7,000 for past

medical expenses, and $2,000 for lost wages. Square argues that she suffered an

injury to the L5-S1 disc in her lower back which ultimately required two surgeries

necessitating an increase in these awards.

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Square has initially argued the previous legal errors as discussed required a de

novo review. Finding no merit to these arguments we now review the award of

general damages pursuant to the abuse of discretion standard and the awards of

special damages pursuant to the manifest error standard, examining the facts or

circumstances of the case under the circumstances to determine the adequacy or

inadequacy of the award. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883

So.2d 1128, writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31.

“A tortfeasor is only liable for damages caused by his negligence, not from

separate, independent, or intervening causes of damage, and it is the plaintiff who has

the burden of proving that his injuries are in fact attributable to defendants.” Doucet

v. Doug Ashy Bldg. Materials, Inc., 95-1159, p.5 (La.App. 3 Cir. 4/3/96), 671 So.2d

1148, 1152.

The jury found that Square was injured in this accident. However, the amount

of damages awarded by the jury are a further indication that, although the jury felt

Square was injured in this accident, any resulting surgeries, loss of wages, and future

damages were the result of lifting her child and not related to this accident. We

cannot say the jury abused its discretion or committed manifest error in its award of

damages for this accident. After reviewing the facts and medical evidence in this case

we find no error in the jury’s finding that the left-sided herniation indicated on the

April 4, 2000 MRI was not a result of this accident. It has not been disputed that

Square picked up her forty-five pound child in early April and experienced

excruciating pain. There was a definite change between the MRI after the accident

and the MRI following the child-lifting incident. Therefore, we find no abuse of

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discretion in the jury’s award of general damages nor manifest error in the jury’s

award of special damages.

For the reasons set forth in this opinion, the judgment of the trial court is

affirmed. Costs of this appeal are assessed to Janis Square.

AFFIRMED.

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