Quincy L. Cawthorne v. Jace Fogleman

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-870

QUINCY L. CAWTHORNE

VERSUS

JACE FOGLEMAN, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20102387
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery,
Judges.

JUDGMENT OF DISMISSAL VACATED.
REMANDED WITH INSTRUCTIONS.

Conery, J., concurs with reasons.

Edward O. Taulbee, IV
Taulbee & Associates
P. O. Box 2038
Lafayette, LA 70502-2038
(337) 269-5005
COUNSEL FOR DEFENDANT-APPELLEE:
Southern Farm Bureau Cas. Ins. Co.
Michael Fogleman
Jace Fogleman

Pride Justin Doran
Doran Law Firm
P. O. Box 2119
Opelousas, LA 70571
(337) 948-8008
COUNSEL FOR PLAINTIFF-APPELLANT:
Quincy L. Cawthorne

SAUNDERS, J.

This case arises out of an automobile accident in Lafayette, Louisiana.

Plaintiff brought suit alleging injury arising out of said automobile accident. A

jury found no negligence on the part of Defendant and the trial court thereby

dismissed the suit. Plaintiff appeals.

FACTS AND PROCEDURAL HISTORY

On April 8, 2009, at approximately 3:58 p.m., Plaintiff, Quincy Cawthorne

(“Cawthorne”), was travelling westbound on Johnston Street in Lafayette,

Louisiana, in his 2007 GMC Yukon. At about that same point in time, Defendant,

Jace Fogleman (“Fogleman”), was leaving his condominium at 2202 Johnston

Street in his 2006 Chevrolet Malibu. Fogleman exited the private driveway of his

complex, turning right into the outside westbound lane onto Johnston Street.

When he did so, or shortly thereafter, the two cars collided.

Officer Chadwick Fontenot (“Office Fontenot”) of the Lafayette Police

Department arrived on the scene shortly after to investigate the accident. He took

two written statements from the parties. Cawthorne provided the following

statement of events:

I was traveling west on Johnston Street when a car pulled out of a
private drive onto Johnston Street. I attempted to avoid him but could
not, because a car was beside me in the inside line [sic]. I was in the
outside lane at the time of the accident. The driver stated that he did not
see me.

Fogleman also provided the investigating officer with a written statement of the

events:

I was turning out of 2202 Johnston and was turning right with my
blinker on. It was safe to get into the right lane. There were no blinkers
indicating that a vehicle needed to switch lanes. I pulled out of my drive
and began to drive when I was hit by the Yukon.

Fogleman additionally gave a verbal statement, which the officer

summarized as indicating that Fogleman “exited a private lot, making a right turn

onto Johnston Street. He stated it was clear for him to proceed. He stated that he

was making a right turn when his vehicle collided with” Cawthorne‟s vehicle.

Fogleman testified that this accident occurred because Cawthorne changed

lanes, moving from the inside westbound lane and crossing the center line into

Fogleman‟s lane of travel, without signaling and with no advance warning thereby

striking Fogleman‟s vehicle. Fogleman contended he completed his right turn into

the outside lane and was fully occupying that lane.

In his accident report, Officer Fontenot established that the weather was

clear and dry. There were no impediments to Fogleman‟s field of vision from

where he was turning. The speed limit was forty miles per hour, and there was no

evidence of Cawthorne violating the speed limit.

Cawthorne filed suit on April 7, 2010, against Fogleman, Fogleman‟s father,

and their insurance company, asserting he suffered bodily injury, including, but not

limited to, neck and back pain. 1 Fogleman‟s father was later dismissed.

Cawthorne asserted at trial that, as a result of the accident, he sustained

approximately $143,563.62 in past medical expenses. His treating physician, Dr.

George Ray Williams (“Dr. Williams”), performed a lumbar fusion and also

recommended a cervical fusion. Cawthorne also asserted that it was reasonable to

expect he would incur at least $147,255.00 in future medical expenses as a result

of the accident.

Fogleman asserted that he did not cause the accident, but rather it was due to

Cawthorne‟s fault. He offered accident reconstruction testimony by James Lock

(“Lock”), as well as testimony by a diagnostic radiologist, Dr. Curtis Partington

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Fogleman‟s father was later released from this suit.
2

(“Dr. Partington”). The parties filed several motions in limine pertaining to the

contested issues of whether Fogleman‟s deposition would be allowed in lieu of his

actual appearance at trial, whether Lock would be allowed to testify, and whether

(and to what extent) Partington would be allowed to testify.

The trial court denied Cawthorne‟s motions in limine pertaining to the above

pre-trial motions on February 22, 2012, and further denied his motion for

reconsideration on the first morning of the trial. Trial began on February 27, 2012,

and lasted for four days. The jury returned with a verdict in favor of Fogleman,

finding he was not negligent. Cawthorne appeals.

ASSIGNMENTS OF ERROR

Cawthorne sets forth the following assignments of error:

1. The jury erred in finding Fogleman bore no legal responsibility for the

automobile accident.

2. The trial judge erred in allowing the introduction of Fogleman‟s trial

deposition, instead of requiring that he appear at trial.

3. The trial judge erred in allowing the testimony of James Lock.

4. The trial judge erred in not allowing Cawthorne to present a diagram of the

accident scene prepared by Officer Fontenot.

5. The trial judge erred in allowing the testimony of Dr. Partington.

6. The jury erred by not making an award of damages.

LAW AND ANALYSIS

Standard of Review

An appellate court must do more than simply review the record for some

evidence which supports or controverts a trial court‟s finding; the appellate court

must review the record in its entirety to determine whether the trial court‟s finding

was clearly wrong or manifestly erroneous. Johnson v. Safeway Ins. Co., 98-920
3

(La.App. 3 Cir. 1/6/99), 741 So.2d 32. An appellate court, even if it believes that

errors committed at trial influenced the jury verdict, must undertake an

independent evaluation of the facts and adjudicate the controversy before it.

Temple v. Liberty Mut. Ins. Co., 330 So.2d 891 (La.1976).

Where there is conflict in testimony as to which party‟s negligence was the

cause of the accident, a fact finder‟s reasonable evaluations of credibility and

inferences of fact should not be disturbed unless they are clearly wrong or

manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989). The issue to be

resolved by a reviewing court is not whether the trier of fact was right or wrong,

but whether the fact finder‟s conclusion was a reasonable one. Cosse v. Allen-

Bradley Co., 601 So.2d 1349 (La.1992).

Therefore, to reverse a trial court‟s determination of fact, 1) no reasonable

factual basis must exist for the fact finder‟s conclusions, and 2) the record must

establish the fact finder is clearly wrong or manifestly erroneous. Pinsonneault v.

Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02), 816 So.2d 270.

Assignment of Error No. 1: Jury Finding

The first issue raised on appeal by Cawthorne is the jury‟s determination that

Fogleman bore no legal responsibility for the accident. Our review of the record

and facts recited show the evidence can be interpreted in two possible ways—one

which would relieve Fogleman of liability and one which would hold him

accountable. As discussed above, the manifest error rule states that an appellate

court must give great deference to the fact finder‟s reasonable conclusions. When

there are two permissible views of the evidence, the fact finder‟s choice between

them cannot be manifestly erroneous or clearly wrong. Davis v. Ensco Offshore

Co., 06-197 (La.App. 3 Cir. 5/31/06), 931 So.2d 1194. In this case, there are two

4

reasonable interpretations of the facts. Accordingly, we cannot reverse the jury‟s

finding of no legal responsibility on the part of Fogleman.

Assignment of Error No. 2: Fogleman’s Trial Deposition

Fogleman was not present at trial because he voluntarily enrolled in a

transitional program in Spokane, Washington, following his completion of a drug

therapy program. He began seeking therapy in October of 2011 in Utah at a

facility called “Legacy Outdoor Adventures” and completed the program in three

months. He then voluntarily enrolled in the Washington program, “Life Designs,”

which he alleged was for a minimum of five months. This, he asserts, made him

unavailable to testify at trial in February of 2012, and necessitated the use of his

trial deposition.

Louisiana Code of Civil Procedure Article 1450, in pertinent part,

establishes the parameters for the use of deposition testimony at trial for a party or

witness:

A. At the trial or upon the hearing of a motion or an interlocutory
proceeding, any part or all of a deposition, so far as admissible
under the Louisiana Code of Evidence applied as though the
witnesses were then present and testifying, may be used against any
party who was present or represented at the taking of the deposition
or who had reasonable notice thereof, in accordance with any of the
following provisions:

....

(3) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds:

(a) That the witness is unavailable; [or]

(b) That the witness resides at a distance greater than one
hundred miles from the place of trial or hearing or is out of the
state, unless it appears that the absence of the witness was
procured by the party offering the deposition. . . .

La.Code Civ.P. art. 1450(A)(3). Thus, the requirements for the admissibility of the

deposition of a witness are twofold: (1) the deposition must be admissible under
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the Louisiana Code of Evidence and (2) the witness must be either (a) unavailable;

(b) residing over one hundred miles from the place of trial without provocation by

the party offering the deposition; or (c) in another state without provocation by the

party offering the deposition.

When the deposition is sought to be used in place of the witness‟ actual trial

testimony, a showing of unavailability of the witness is required. Montgomery v.

Breaux, 297 So.2d 185 (La.1974). A party who is not legally unavailable or who is

intentionally absent from trial due to his choice to be out of state may not submit

his deposition testimony in lieu of live testimony. Boutte v. ABC Ins. Cos., 00-

0649 (La.App. 4 Cir. 2/6/02), 811 So.2d 30. A party whose absence from trial is

attributable to his choice to be out of state on the date of trial is considered to have

procured his own absence. Bruins v. U.S. Fleet Leasing, Inc., 430 So.2d 386

(La.App. 3 Cir. 1983).

In Bruins, the defendant and his wife attempted to offer their depositions in

lieu of appearing at trial but the trial court refused to admit the depositions finding

that they “decided” to be out of Louisiana on the day of trial. Id. at 387.

Defendant “was the party offering the depositions and was also the party

„procuring‟ the absence of the witnesses.” Id. As such, this violated La.Code

Civ.P. art. 1450; defendant was not legally unavailable and was intentionally

absent from trial due to his choice to be out of state; therefore, he could not submit

his deposition testimony in lieu of live testimony when he procured that

unavailability. La.Code Civ.P. art. 1450.

Life Designs is not a medical treatment facility as alleged by Fogleman in his

trial deposition, but a therapeutic program for young adults that “offers fantastic

opportunities for outdoor recreation.” The program was voluntary and served no

medical purpose. At trial, his mother, Rebecca Fogleman, testified that it was
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“fair” to say her son was not receiving any medical treatment at Life Designs. She

also denied that there was a doctor providing him with any type of medical

treatment there.

No evidence was offered that Fogleman was unable to leave the center except

for his own testimony. Fogleman admitted that he had never discussed with

anyone at the program whether he could leave. In his trial deposition, Fogleman

stated he never even inquired as to whether he could return to Louisiana to testify

at trial and then return to the program. He stated an exception was allowed for him

to give the deposition because it was “very important” to him, but he was unaware

of the criteria for making an exception that would allow him to leave the facility or

take a hiatus. He asserted the facility did not allow him to come and go freely or as

he pleased.

Having permission to come and go freely is very different from the

availability of permission to leave under extraordinary circumstances, such as

being a defendant at trial. In the instant case, our review of the record shows

Fogleman did not show he was legally unavailable. There is no credible proof that

Fogleman could not make it to trial. The only evidence as to why Fogleman was

unavailable was his own self-serving, and false, deposition statement that he was

receiving some sort of medical treatment. In Bourgeois v. A.P. Green Indus., Inc.,

06-87 (La.App. 5 Cir. 7/28/06), 939 So.2d 478, writ denied, 06-2159 (La. 12/8/06),

943 So.2d 1095, the appeals court found the unavailability of a named plaintiff was

not established since the only evidence as to his lack of availability came from

hearsay evidence from the plaintiff‟s attorney, which could not be considered.

Likewise, Fogleman‟s self-serving statements on his ability to leave Life Designs,

without more, are an insufficient showing of unavailability. “A party is not legally

„unavailable‟ as a witness simply because he eschews the trial.” Dickens v.
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Commercial Union Ins. Co., 99-698, 99-699, p. 5 (La.App. 1 Cir. 6/23/00), 762

So.2d 1193, 1197.

In Dickens, the court of appeal‟s review of the record showed that the

plaintiff Dickens was absent because she chose to attend a conference in Florida

rather than attend the trial of her claim. Dickens argued she was attending a

national conference of which she was a member of the Board of Directors of the

Baton Rouge Chapter. Nevertheless, the court held she was legally available and

her absence was self-procured. Accordingly, she was not entitled to introduce her

deposition testimony under Article 1450, and the trial court abused its discretion in

permitting the introduction of her deposition testimony. Dickens, 762 So.2d 1193.

The instant case is also similar to Wehbe v. Waguespack, 98-475 (La.App. 5

Cir. 10/28/98), 720 So.2d 1267, writs denied, 98-2907 (La. 1/15/99), 736 So.2d

211 and 98-2970 (La. 1/15/99), 736 So.2d 213, where the appeals court upheld a

trial court‟s finding that one of the plaintiffs, who was out of the country, chose to

remain there and was available for trial. In that case, the husband was injured in an

auto accident and filed suit to recover; his wife asserted a claim for loss of

consortium. She did not appear at trial and the trial court excluded her deposition

from evidence. The court noted that the record contained nothing to indicate the

plaintiff‟s failure to attend trial was attributable to any reason other than her choice

to remain in Lebanon. Id.

The trial court abused its discretion in permitting the use of Fogleman‟s

deposition. His live appearance was crucial for the jury to weigh the credibility of

his testimony rather than glean what happened the day of the accident from the

cold record of his deposition. Where there is such a crucial conflict in testimony,

the jury‟s core means of making reasonable evaluations of credibility and

reasonable inferences of fact comes from witnessing live testimony. The use of a
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deposition in lieu of a key party testifying should not be taken lightly. There is no

supportable evidence in the record that Fogleman could not leave the program to

testify at trial; it only reflects evidence that he chose to remain there. Choosing to

stay at Life Designs in Washington was more for his convenience than out of

necessity. As such, it was self-procured. He was, therefore, legally available.

Thus, we find that he was not entitled to introduce his deposition testimony in lieu

of live testimony. Remand for a trial not inconsistent with this evidentiary holding

is necessary in light of this finding.

Assignment of Error No. 3: James Lock Testimony

A trial judge has wide discretion in determining whether to allow a witness to

testify as an expert, and this includes the determination of how much and what

kind of education and/or training adequately qualifies the individual as an expert,

and such judgment will not be disturbed by an appellate court unless it is clearly

erroneous. Rhine v. Bayou Pipe Coating, 11-724 (La.App. 3 Cir. 11/2/11), 79

So.3d 430.

Louisiana Code of Evidence Article 702 sets forth the general rule for the

admissibility of expert testimony in Louisiana:

If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.

For the expert‟s testimony to qualify as knowledge which would assist the trier of

fact, it must meet four criteria originally established in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and adopted by

Louisiana courts. This inquiry serves to assist the trial judge in making a

preliminary assessment as to the validity of the evidence because the trial judge is

required to act as a gatekeeper in order to ensure “any and all scientific testimony
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or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589.

These criteria include:

1. The “testability” of the expert‟s theory or technique;

2. Whether the theory or technique has been subjected to peer review and

publication;

3. The known or potential error rate; and

4. Whether the methodology is generally accepted in the scientific

community.

Perret v. Nelson, 98-393, p. 11 (La.App. 5 Cir. 11/25/98), 722 So.2d 1118, 1123,

writ denied, 98-3166 (La. 2/12/99), 738 So.2d 575 (citations omitted).

Cawthorne asserts the trial court abused its discretion in accepting James

Lock as an expert in the field of accident reconstruction and allowing him to

present his expert opinions. Cawthorne argues Lock was unqualified, his opinions

were based on nothing more than common sense, and Lock arbitrarily decided to

believe or disbelieve one witness over the other.

Lock has thirty-seven years of experience in the field of accident

reconstruction. He began his training in 1975 working for the Department of

Transportation Institute at Texas A&M performing contract work for the United

States Department of Transportation. During this six-year period, he performed

thousands of accident investigation reconstructions. He also developed training

courses in accident investigation reconstruction and trained others in the field. He

has been accepted as an accident reconstruction expert by courts in Texas,

Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, Indiana,

Missouri, Tennessee, New York, Ohio, Michigan, South Dakota, California,

Arizona, New Mexico, and Colorado. He has also performed work for various

10

Departments of Transportation including Louisiana, Texas, Missouri, Georgia,

Florida, New Mexico, and Pennsylvania.

In conducting his accident reconstruction evaluation in the instant case, Lock

employed peer-reviewed methodologies recognized and accepted in his field,

including those outlined in the Northwestern Traffic Institute Manual. This

methodology is generally accepted in the scientific community.

It was within the trial court‟s discretion to rule that Lock was qualified to

render expert testimony in his field of accident reconstruction. This was not

clearly erroneous. The trial court did not abuse its discretion in accepting Lock as

an expert. We do not find merit in this assignment of error.

Assignment of Error No. 4: Officer Fontenot Diagram

Cawthorne alleges the trial court abused its discretion in granting Fogleman‟s

Motion in Limine excluding Officer Chadwick Fontenot‟s diagram from evidence

at trial. The trial court is vested with wide discretion in determining the relevancy

of evidence, and his ruling will not be disturbed on appeal in the absence of a clear

showing of abuse of discretion. State v. Miles, 402 So.2d 644 (La.1981).

Officer Fontenot investigated the accident as an officer for the Lafayette

Police Department. He did not witness the accident. Officer Fontenot further

confirmed that the vehicles were moved prior to his arrival; there were no

markings on the roadway related to the accident; there was no debris on or around

the roadway related to the accident; and he did not perform any measurements

during his investigation of the accident.

Officer Fontenot was never qualified, tendered, or accepted as an expert in

this case. As part of the crash report made at the scene of the accident, Officer

Fontenot prepared an unscaled diagram in which he marked an approximate area of

impact. This diagram was not based on any measurements regarding distances
11

and/or spacing of the relevant points, nor was it based on his observation of any

physical evidence at the scene of the accident. In essence, Officer Fontenot

arbitrarily identified and labeled points on the diagram.

Based on this context, the trial court excluded Officer Fontenot‟s diagram on

the basis that it had no probative value and was prejudicial. This exclusion is not

clearly erroneous. The trial court did not abuse its discretion in excluding Officer

Fontenot‟s diagram. We do not find merit in this assignment of error.

Assignment of Error No. 5: Dr. Partington Testimony

Cawthorne asserts the trial court abused its discretion in accepting Dr. Curtis

Partington, a neuroradiologist and licensed medical doctor, as an expert in this

case.

One of the issues presented to the trier of fact was the interpretation of

Cawthorne‟s cervical MRI, performed on May 19, 2009, by Dr. David Jewell,

regarding a possible abnormality at C4-5 and C5-6. Dr. Jewell performed the MRI

upon the referral of Cawthorne‟s treating orthopedic surgeon, Dr. George

Williams. Dr. Jewell concluded the cervical MRI was normal at C4-5 and C5-6.

Dr. Williams also interpreted the MRI and concluded there were abnormalities at

C4-5 and C5-6 and these abnormalities warranted surgical intervention.

Thereafter, Fogleman asked Dr. Curtis Partington to review the MRI and formulate

a third opinion. Dr. Partington was not asked to physically examine Cawthorne, as

is the standard in neuroradiology, only to review the cervical MRI for the existence

of abnormalities.

Dr. Partington has been practicing radiology in Baton Rouge, Louisiana, for

twenty-one years and has been certified in the subspecialty of neuroradiology since

the Board of Neuroradiology was created about sixteen years ago.

Neuroradiology, a subdiscipline of radiology, deals with diagnostic imaging of the
12

brain and spinal cord. Cawthorne stipulated to the qualification of Dr. Partington

in Dr. Partington‟s trial deposition.

On appeal, Cawthorne focuses on the fact that Dr. Partington did not

physically examine Cawthorne or review Cawthorne‟s documentation as to

specific pain complaints, and that Dr. Partington was rejected as an expert

previously for not physically examining a patient. It is clear that this methodology

is generally accepted in the field of neuroradiology, as no physical examination is

required to interpret an MRI. Thus, we find that the trial court did not abuse its

discretion in accepting Dr. Partington as an expert witness in his field of

neuroradiology. We do not find merit in this assignment of error.

CONCLUSION

We have noted in the assignment of error number two that the use of

Fogleman‟s trial deposition in lieu of his live testimony was in error. When

appropriate, appellate courts render judgments on the merits when the trial court

has made a consequential but erroneous ruling on the exclusion or admission of

evidence. Builliard v. New Orleans Terminal Co., 171 So. 78 (1936). See also

Gonzales v. Xerox, 320 So.2d 163 (La.1975) and cases cited therein.

Therefore, “[w]here a finding of fact is interdicted because of some legal

error implicit in the fact finding process or when a mistake of law forecloses any

finding of fact, and where the record is otherwise complete, the appellate court

should, if it can, render judgment on the record.” Ragas v. Argonaut Sw. Ins. Co.,

388 So.2d 707, 708 (La.1980). However, “[t]here are cases where the weight of

the evidence is so nearly equal a firsthand view of witnesses is essential to a fair

resolution of the issues.” Id. “The appellate court must itself decide whether the

record is such that the court can fairly find a preponderance of the evidence from

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the cold record. Where a view of the witnesses is essential to a fair resolution of

conflicting evidence, the case should be remanded for a new trial.” Id.

In applying this standard, it is clear that the instant case is one in which it

would be inappropriate for adjudication by an appellate court. As such, remand for

a trial not inconsistent with this evidentiary holding is appropriate in light of our

findings. We reverse the trial court‟s decision to allow Fogleman to submit a

deposition in lieu of his live testimony.

DECREE

Fogleman was not unavailable as required for use of a deposition by

La.Code Civ.P. art. 1450, given that he made an insufficient showing of

unavailability. The trial court abused its discretion in finding otherwise. Thus, he

should not have been permitted to use a trial deposition in lieu of his live

testimony. Given that the weight of evidence is so nearly equal that firsthand view

of witnesses is essential to a fair resolution of the issues, the case is not appropriate

for appellate adjudication. We reverse the trial court‟s decision to allow Fogleman

to submit his deposition in lieu of his live testimony and remand the matter to the

trial court for results not inconsistent herewith.

Costs of this appeal are assessed to Fogleman.

JUDGMENT OF DISMISSAL VACATED.
REMANDED WITH INSTRUCTIONS.

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NUMBER 12-870

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

QUINCY L. CAWTHORNE

VERSUS

JACE FOGLEMAN, et al

CONERY, J. concurs and assigns reasons.

I concur with the majority on the record as it is presently constituted. For

the reasons set forth in the opinion, I agree that the defendant has not met his

burden of proving a legally acceptable reason for his client’s absence at trial and

therefore the defendant’s deposition should not have been admitted. The issue of

credibility is crucial in this case and it is necessary, absent exceptional

circumstances, that the defendant be present for in person testimony and for the

defendant’s cross examination in the presence of the jury. A key issue in the case

was the location of plaintiff’s vehicle when defendant pulled out of the parking lot

onto Johnston Street. The plaintiff had the right to cross examine the defendant

on this and other key issues in the presence of the jury so that the jury could

properly perform its duty to weigh witness credibility and find the facts.

Voluntary absence on the part of the defendant, especially in a jury case, should

not be excused absent special and exceptional circumstances not proven by the

defendant on the record of this case.