Earl McCarthy, Sr. v. City of Opelousas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1035

EARL MCCARTHY, SR.

VERSUS

CITY OF OPELOUSAS, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 13-C-2626-B
HONORABLE GERARD CASWELL, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Van H. Kyzar, Judges.

AFFIRMED.

Gloria A. Angus
Angus Law Firm, LLC
P. O. Box 2337
Opelousas, LA 70571
Telephone: (337) 948-8800
COUNSEL FOR:
Plaintiff/Appellant - Earl McCarthy, Sr.

Travis J. Broussard
Durio, McGoffin, Stagg & Ackermann
P. O. Box 51308
Lafayette, LA 70505-1308
Telephone: (337) 233-0300
COUNSEL FOR:
Defendant/Appellee - City of Opelousas

THIBODEAUX, Chief Judge.

Earl McCarthy, Sr. brought this tort action against the City of

Opelousas (hereafter “the City”) after a tree located at North City Park split and

fell on his truck and, allegedly, on his person. The trial court found that the

defective condition of the tree caused damage to the truck, but that Mr. McCarthy

failed to meet his burden of proof that he sustained physical injury. Mr. McCarthy

was awarded $5,073.66 in property damage. Mr. McCarthy was not awarded

personal injury damages. Additionally, the trial court awarded $2,500 in expert

witness fees. Mr. McCarthy now appeals. We affirm.

I.

ISSUES

This court must determine:

(1) whether the trial court erred in determining that the
plaintiff was not credible, and that another witness
was credible when no objective evidence
supported the testimony;

(2) whether the trial court erred in its denial of specific
and general damages; and,

(3) whether the trial court abused its discretion when it
only awarded a portion of the expert witness fees.

II.

FACTS AND PROCEDURAL HISTORY

On June 8, 2012, Mr. McCarthy went to North City Park in Opelousas

to dry off his freshly-washed pickup truck. Mr. McCarthy parked under a Bradford

pear tree and started to dry off his truck when a large limb of the tree fell onto his

truck. It is disputed whether the tree limb also fell on Mr. McCarthy and whether

he was inside or outside of the truck when the tree limb fell.

Mr. McCarthy claims he was standing outside of the truck when the

limb fell and struck him on the right shoulder, pinning him between the tree and

the truck, forcing him to crawl on his stomach to free himself. He was driven by

his wife to Opelousas General Hospital for emergency treatment and was given

pain medication. On June 10, 2012, Mr. McCarthy returned to Opelousas General

Hospital because he was still in pain and experiencing weakness. Mr. McCarthy

also sought treatment from Dr. Bozzelle in Lafayette before switching to Dr.

Thomas at Wellness in Opelousas because it was closer to home. He saw Dr.

Thomas and Dr. Bozzelle between his regular checkups with his family doctor, Dr.

White.

Mr. McCarthy sued the City. At trial, Mr. McCarthy’s counsel did not

call any of Mr. McCarthy’s physicians to testify about his injuries. The trial court

was presented with bills from the emergency room that did not specify treatment,

and chart notes from Mr. McCarthy’s various doctors’ appointments which

contained contradictory reports of Mr. McCarthy’s accident. In Dr. Thomas’s

notes, he says Mr. McCarthy was hit by the tree while standing by his truck.

Conversely, Dr. White wrote that Mr. McCarthy became injured trying to get out

of the way as Mr. McCarthy moved abruptly when the tree fell on his truck.

During the trial, witness testimony contradicted Mr. McCarthy’s own

testimony, as well as the testimony of other witnesses. Mr. McCarthy’s counsel

was able to establish that the tree had a defective condition for which the City had

constructive notice, that the condition of the tree posed an unreasonable risk of

harm and was the cause-in-fact of the branch breaking and causing damages. This

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was established through the testimony of park employees and expert arborist,

Robert Thibodeaux.

The court heard testimony from Mr. McCarthy’s two daughters;

Marlin Jones, a former park employee; Romalis Thomas, an Opelousas Police

Department Detective; Tommy Brown, a park employee; and the park supervisor,

Clarence Barrow.

Marlin Jones’s Testimony

Marlin Jones testified that he was at the park on the day of the

accident working in the weight room. Mr. Jones testified that while he was sitting

in his own vehicle parked about one-hundred and fifty feet away from Mr.

McCarthy’s truck, he saw the tree fall down through his rearview mirror. He

stated that Mr. McCarthy was standing outside his truck and was toward the back

side of his truck when the tree fell. Mr. Jones testified that after the tree fell, he got

out of his vehicle, saw Mr. McCarthy’s feet on the ground, became nervous

because he did not know whether Mr. McCarthy was dead or alive, and ran into the

weight room to call Mr. McCarthy’s son, Carl. Mr. Jones testified that after the

tree fell, Mr. McCarthy was under the tree with his feet pointing up. However, Mr.

Jones does not recall being able to reach Carl so he stayed in the gym, and went

outside after a few minutes. After briefly returning to the weight room, Mr. Jones

testified that the tree limb had been removed and Mr. McCarthy was sitting in his

truck and his son was talking to him. No phone records were submitted into

evidence, and Carl did not testify at trial.

The trial court found Mr. Jones’s testimony lacked credibility. Mr.

Jones said he withheld information from the attorney for the City because he did

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not want to get involved. Additionally, the trial court did not believe Mr. Jones

would not either immediately call 911 for help or call a park supervisor. The trial

court further noted that Mr. Jones said that the tree had been removed when he

came back out of the weight room, even though the limb had to be removed by

heavy equipment which would have taken longer than a few minutes. The trial

court found that Mr. Jones’s testimony contradicted the testimony of Mr.

McCarthy and Tommy Brown about Mr. McCarthy’s location when the tree fell

and how he got out from under the tree.

Earl McCarthy, Sr.’s Testimony

Mr. McCarthy testified that he washed his car, went home to get a

shammy, and then went to the park and started drying off his truck. As he was

drying off his windshield near the driver’s side’s mirror, suddenly the tree limb hit

him on the back of the shoulder, knocking him onto his stomach and the ground

before he pushed up with his feet, taking his hand and dragging himself from the

right side of his left front tire and crawling out. Mr. McCarthy claimed that he

sustained injuries to his neck, back, and shoulder, causing him to seek medical

treatment at the emergency room twice, in addition to going to Dr. Bozzelle and

Dr. Thomas for treatment. Mr. McCarthy went to Dr. White for treatment

unrelated to the accident.

The trial court found that Mr. McCarthy’s testimony was not credible

because it could not reconcile Mr. McCarthy saying he crawled on his stomach

with Mr. Jones saying he saw Mr. McCarthy with his feet up. Mr. McCarthy also

testified that when he got up he saw a park ranger, Jerome Richardson, who he

described as crippled. Mr. McCarthy asked to use Mr. Richardson’s phone to call

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his wife. Shortly thereafter, he saw a few other people, including Mr. Jones, in the

area.

Detective Romalis Thomas’s Testimony

The court also heard testimony from Detective Romalis Thomas. Det.

Thomas was working off-duty detail at the park’s pool when dispatch notified him

of the incident, and he responded. Det. Thomas spoke to Mr. McCarthy who said

he had been standing by his truck when the tree fell and hit him and the truck. Det.

Thomas filled out an accident report at the scene and included photos (Exhibit “P-

16”) that he took at the time of the incident, prior to the removal of the tree. Det.

Thomas testified that he did not interview any witnesses at the scene and only

spoke to Mr. McCarthy and possibly to the responding EMS but could not recall if

he had spoken to the EMS.

Mr. McCarthy informed Det. Thomas that the tree fell on him and his

truck. Det. Thomas noted that he found it strange that he said the tree fell on him

because “he looked well.” Det. Thomas admitted he originally thought the whole

tree had fallen on Mr. McCarthy when he received the dispatch; however, upon

arrival at the scene, he learned it was only the large limb and branches.

Furthermore, Det. Thomas opined that Mr. McCarthy looked fine. He qualified his

opinion that he was not a doctor and, therefore, could not truly assess Mr.

McCarthy’s pain. Det. Thomas did not see any debris, abrasions, scrapes, or cuts

on Mr. McCarthy.

The trial court found Det. Thomas was a credible witness. In its

Reasons for Judgment, the trial court noted that based on the photographs, and Det.

Thomas noting that Mr. McCarthy had no tears to his clothing, and was not

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scraped or bleeding, the trial court found it difficult to believe that a limb of that

size could fall on someone, and the individual could belly-crawl out and have no

dirt on the individual’s clothing or hands.

Tommy Brown’s Testimony

Tommy Brown, a park employee who was mowing the lawn at the

park on the day of the accident, testified that Mr. McCarthy was sitting in his truck

at the time of the accident and he helped Mr. McCarthy out of the truck. Mr.

Brown testified that he was putting away the riding mower in the shed around 3:25

p.m. or 3:30 p.m. prior to when he usually leaves the park at 3:45 p.m. As Mr.

Brown put away the mower, he turned to see the tree fall on a truck. He then

locked the shed and proceeded to the truck where he found Mr. McCarthy inside

the truck on the driver’s side. Mr. Brown told Mr. McCarthy that he would have to

get out on the passenger side of the truck. Mr. Brown testified that he aided Mr.

McCarthy in getting out of his truck by lifting the limbs with one hand and opening

the truck’s passenger door with his other hand. After Mr. McCarthy got out of the

passenger side of the truck, he went to the back of the truck and wanted to make a

call but could not dial the phone. Mr. McCarthy handed Mr. Brown his phone to

assist in making the call. No phone records were submitted into evidence to

corroborate the phone call. No other witnesses verified this, and Mr. McCarthy’s

testimony did not match this account. Notably, Mr. Brown reports to Jerome

Richardson at North Park. Mr. Brown did not make a statement to police nor did

he remain at the scene.

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Additional Testimony and Trial Court Findings

Mr. McCarthy’s daughters also testified at trial, and the trial court

found them to be credible witnesses but did not rely on their testimony. The trial

court noted that the daughters’ testimony only established that they were at home

with their mother and Carl when someone called to tell them something happened

at the park. Carl took off running while their mother gathered towels, not knowing

whether Mr. McCarthy would be bloody.

Mr. McCarthy’s daughters noted that their father no longer could lift

large feed bags to feed his hogs and stopped playing with his grandchildren and

volunteering at church like he had before the incident.

Mr. McCarthy did not call any doctors to testify at trial. In the record

are treatment notes from the chiropractor, and Mr. McCarthy’s family doctor, Dr.

White. The chiropractor’s notes that Mr. McCarthy had issues with range of

motion on April 1, 2013, and again on April 3, 2013, but Mr. McCarthy’s counsel

notes that Mr. McCarthy obtained relief on April 2, 2013. Further, the notes from

Dr. White reflect that Mr. McCarthy had full range of motion in June 2012.

The trial court described how there was a “lack of detailed medical

records, covering the emergency room visits, that Mr. McCarthy said he had, [and

it] would have been nice to have those detailed, at least the detailed billing to show

me what was done, but more importantly, the actual records.” The trial judge

further noted that he was not provided with the records from the EMS that are

created when they respond but do not transport a patient.

The trial court wrote that it did not think that Mr. McCarthy could

establish notice. However, Mr. Brown testified he recognized the tree rot from the

photos even though he had not seen it beforehand. The trial court determined that

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this testimony established constructive notice. After expert arborist, Mr.

Thibodeaux testified, the trial court found that “the defect in the tree was the cause-

in-fact of that branch breaking, which ultimately fell on Mr. McCarthy’s vehicle,

causing damages.” Accordingly, the trial court awarded $5,073.66 to Mr.

McCarthy in property damages with legal interest for the cost of vehicle repair of

$3,785.36 and the cost of the rental car of $1,288.30.

However, the trial court found that Mr. McCarthy failed to meet his

burden of proof that he “received any physical injury as a result of this incident ....”

The trial court reached this conclusion primarily on credibility determinations.

The trial court did not find Mr. Jones to be a credible witness because it neither

believed his testimony that Mr. McCarthy’s toes were up nor did the trial court

believe that the limb had been removed by the time Mr. Jones exited the weight

room ten minutes after the tree had fallen. Additionally, the trial court did not find

that Mr. McCarthy was a credible witness because his testimony that he belly-

crawled was contradictory to Mr. Jones’s testimony, to Det. Thomas’s testimony

that Mr. McCarthy looked unscratched and was not dirty, and to Mr. Brown’s

testimony that Mr. McCarthy was in his car when the tree fell. The contradictory

testimony, coupled with the lack of medical evidence and physician testimony, led

the trial court to conclude that Mr. McCarthy did not sustain physical injuries.

Subsequently, a hearing on a motion to tax costs of the expert fees of

Mr. Thibodeaux and to award attorney fees was held on May 8, 2017. The trial

court found there was no basis for attorney fees and awarded $2,500 in expert

witness fees to Mr. Thibodeaux. Mr. McCarthy’s counsel argued for attorney fees

under La.R.S. 13:1511(A). However, the trial court noted that the statute cited by

Mr. McCarthy’s counsel was for property damaged during a taking and was

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inapplicable to “general negligence or strict liability.” Regarding expert witness

fees, Mr. McCarthy’s counsel submitted a bill from Mr. Thibodeaux referencing

six invoices. No testimony to substantiate the six invoices or regarding how much

time Mr. Thibodeaux spent preparing an expert report was introduced. The trial

court found Mr. Thibodeaux was present in court to testify for one day and visited

the site of the accident once.

III.

STANDARD OF REVIEW

“A court of appeal my not set aside a trial court’s or a jury’s finding

of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’” Stobart v.

State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993)

(quoting Rosell v. ESCO, 549 So.2d 840 (La.1989)). “[T]he issue to be resolved

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

whether the factfinder’s conclusion was a reasonable one.” Stobart, 617 So.2d at

882. “The assessment of ‘quantum,’ or the appropriate damages, by a trial judge or

jury is a determination of fact, one entitled to great deference on review.”

Wainwright v. Fontenot, 00-492, p. 6 (La. 10/17/00), 774 So.2d 70, 74 (quoting

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993)). “The fixing

of expert witness fees is within the discretion of the trial court which will not be

disturbed by an appellate court in the absence of abuse of discretion.” Esté v. State

Farm Ins. Companies, 96-99, p. 14 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 859

(citing State, DOTD v. Nelken, 628 So.2d 1279 (La.App. 3 Cir.1993)).

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IV.

LAW AND DISCUSSION

First, this court must consider whether the trial court erred in its

credibility determinations. The trial court found that Mr. McCarthy was not

credible, and Mr. Brown was credible. Mr. McCarthy’s counsel argues that the

trial court used its credibility determinations to deny Mr. McCarthy an award for

bodily injuries. Mr. McCarthy asserts that there is objective evidence to support

that he sustained injuries. The City argues that the trial court did not err in its

credibility determinations because there was conflicting testimony from Mr.

McCarthy, Mr. Jones, and Mr. Brown. Mr. McCarthy also alleges that the trial

court erred in finding Mr. Brown was credible when there was no objective

evidence to support Mr. Brown’s testimony. We disagree.

Under the two-part test established in Arceneaux v. Domingue, the

appellate court must first “find . . . there is a reasonable factual basis for the finding

of the trial court, and . . . further determine that the record established that the

finding is not clearly wrong (manifestly erroneous).” Mart v. Hill, 505 So.2d

1120, 1127 (La.1987) (quoting Arceneaux v. Domingue, 365 So.2d 1330, 1333

(La.1978)). “[T]he jury or trial judge may, and should, assess the credibility of

experts who testify at trial, as well as that of lay witnesses, to determine the most

credible and realistic evidence and the fact finder’s determination of the credibility

of those witnesses will not be disturbed unless found to be clearly erroneous.”

Guidry v. Davis, 382 So.2d 250, 253 (La.App. 3 Cir. 1980) (citing Green v. State,

Southwest Louisiana Charity Hosp., 309 So.2d 706 (La.App. 3 Cir. 1975); Monette

v. Aetna Cas. Sur. Co., 352 So.2d 423 (La.App. 3 Cir. 1977)).

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In West v. Williams, 30,842, pp. 3-4 (La.App. 2 Cir. 8/19/98), 717

So.2d 1224, 1225, the second circuit held that the plaintiff involved in a low-

impact car accident in a grocery store parking lot did not meet her burden that the

“injuries [she] complained of were caused by the fault of the defendant.” The

second circuit found that the trial court record “amply support[ed] the trial court’s

factual and credibility assessments.” Id. The plaintiff provided testimony that was

inconsistent with her daughter’s testimony, her own statement made to the

investigating police officer, and with the notes taken by her chiropractor. Id.

Additionally, in Young v. Allstate Ins. Co., 45,512 (La.App. 2 Cir.

8/8/10), 47 So.3d 595, the second circuit affirmed the trial court’s judgment in

favor of the defendant in a car accident, finding that the plaintiffs’ testimonies

contradicted each other on several points and the trial court was not clearly wrong.

The plaintiffs argued that the defendant’s testimony was “self-serving” and

“uncorroborated.” Id. at 597. The second circuit maintained that the trial court

was in the better position to make credibility determinations, especially because

only the parties testified in court and “everything else was depositions, photos, or

other filings.” Id. at 598.

In this case, we find no error in the trial court’s credibility

determinations. Like the plaintiff in West, Mr. McCarthy’s testimony here was

inconsistent with nearly all other testimony about his location when the tree fell,

and how he extracted himself from under the limb or from inside the cab of the

truck. Additionally, the trial court found Mr. Brown’s testimony that Mr.

McCarthy was inside the truck was credible along with Det. Thomas’s testimony

that Mr. McCarthy looked clean, unmarked, and uninjured.

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Like the plaintiffs in Young, Mr. McCarthy alleges that Mr. Brown’s

testimony was uncorroborated and self-serving as a park employee for the City.

However, the trial court found that Mr. Brown established the tree was rotten from

photos, which clearly provided no benefit to the City’s defense, and had no reason

to lie about whether Mr. McCarthy was inside or outside of the truck. The trial

court in its discretion found that Mr. Brown was credible when he testified that Mr.

McCarthy was inside his truck when the tree fell, rather than outside of the truck as

Mr. McCarthy and Mr. Jones recounted. However, the trial court determined that

there was a lack of evidentiary support for Mr. McCarthy’s bodily injuries.

Further, the trial court found that the medical records provided by Mr. McCarthy

impeached Mr. McCarthy’s own testimony because there were conflicting

descriptions about how he sustained the injuries. The trial court found that Mr.

McCarthy was not credible and found that Mr. McCarthy did not sustain physical

injuries. The photos and other evidence support the trial court’s credibility

determinations. We find the trial court was not clearly wrong when it found Mr.

McCarthy was not credible and Mr. Brown was credible regardless of objective

evidence supporting Mr. Brown’s testimony.

We also find that the lack of medical records and physician testimony

established an adverse presumption that Mr. McCarthy had not sustained injuries.

“[W]hen a litigant destroys, conceals, or fails to produce evidence within his or her

control, it gives rise to an adverse presumption that had the evidence been

produced, it would have been detrimental to the litigant’s case.” Allstate Ins. Co.

v. Ford Motor Co., 00-710, p. 4 (La.App. 3 Cir. 11/2/00), 772 So.2d 339, 342. The

medical records provided were emergency room bills without chart notes which

could have established injury. The chiropractor records that were introduced

12

contradicted the records from Dr. White. No doctors testified at trial to corroborate

Mr. McCarthy’s testimony. If Mr. McCarthy’s treating physicians had testified

and/or if Mr. McCarthy provided more detailed medical records, it may have

established Mr. McCarthy’s injuries or shed light on discrepancies between the

physicians’ chart notes.

Next, this court must address whether the trial court erred in its denial

of specific damages and general damages. Mr. McCarthy alleged that the trial

court abused its discretion in its denial of personal injury damages because the trial

court found the City was negligent. Mr. McCarthy contends that he is discharged

of the burden of proof, suggesting that the applicable legal presumption is that if

Mr. McCarthy was in good health before the accident and the condition appears or

manifests thereafter, then the causal connection between the accident and injury is

established, provided that medical evidence supports the connection. Mr.

McCarthy cites Morris v. Orleans Parish School Bd., 553 So.2d 427 (La.1989) and

Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977) to

support this presumption. We disagree.

In Morris, the Louisiana Supreme Court reversed the court of appeal

and reinstated the trial court’s judgment, finding the trial court did not abuse its

discretion in making the damage award. Morris, 553 So.2d 427. The supreme

court found that the school board was liable for a twelve-year-old student’s fall on

wet asphalt under a water fountain on school property. Id. The supreme court

found the trial court correctly determined: (1) the school board’s conduct was the

cause-in-fact of the fall; (2) the school board owed a duty to the student, which was

breached; and (3) the school board was negligent. Id.

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Mr. McCarthy also cites Lucas, which established the legal

presumption for the causal connection between injury and accident in workers’

compensation cases. This presumption is inapplicable here because Lucas involves

the statutorily and jurisprudentially established presumption for workers’

compensation-related injuries.

Louisiana Civil Code Article 2315(A), provides:

“Every act whatever of man that causes damages to
another obliges him by whose fault it happened to repair
it.”

Under La.Civ.Code art. 2316, “Every person is responsible for the damage he

occasions not merely by his act, but by his negligence, his imprudence, or his want

of skill.” Additionally, under La.Civ.Code art. 1999, “When damages are

insusceptible to precise measurement, much discretion shall be left to the court for

the reasonable assessment of the damages.”

In Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70, the

Louisiana Supreme Court reinstated the award of $1,500 in medical expenses,

finding the jury did not abuse its discretion when the jury found that the

pharmacy’s conduct was the legal cause of the minor-plaintiff’s injuries when the

pharmacy incorrectly filled the Prozac prescription which led to the minor’s

overdose. The lower court found that the defendant was “at fault for the plaintiff’s

injuries and liable to him for his medical expenses incurred yet has declined to

make any award at all for general damages.” Id. at 74. The supreme court upheld

the award of medical expenses, while acknowledging that courts of appeal

recognize “that under certain circumstances the evidence of record supports both

an award of medical expenses and a concurrent denial of general damages.” Id. at

75.

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In Olivier v. Sears Roebuck & Co., 499 So.2d 1058 (La.App. 3 Cir.

1986), this court held that the trial court did not abuse its discretion when it found

that the plaintiff failed to meet her burden of proof establishing a new back injury

from an automobile accident. We found that the trial court did not abuse its

discretion in awarding $150 to the plaintiff for unspecified damages, possibly for a

checkup following the accident, while denying damages, citing a lack of objective

evidence proving injury. The testimony provided by the plaintiff’s physicians

contradicted the testimony of the plaintiff. Additionally, we upheld the award for

property damages of $1,100 for repair of the pickup truck.

In this case, we find that the trial court did not abuse its discretion in

its denial of general or specific damages. In Wainwright, the supreme court found

fault and causation but did not award damages even though the plaintiff was

injured. Here, however, the trial court did not find that Mr. McCarthy was injured

even though the trial court found that the City’s tree was the cause-in-fact for the

damage to Mr. McCarthy’s truck. Although the trial court found that the defective

tree was the cause-in-fact for the property damage, the failure to establish bodily

injury precluded the awards of general and specific damages.

Similar to the plaintiff in Olivier, Mr. McCarthy lacked objective

evidence of injury. In Olivier, the plaintiff was unable to establish injury even

with physician testimony—which was noted as contradictory. Here, Mr. McCarthy

did not have a single physician testify about his medical treatment, presenting an

even weaker case than the plaintiff in Olivier. Accordingly, we hold that the trial

court did not abuse its discretion in its denial of general and specific damages.

Finally, this court must review whether the trial court abused its

discretion in awarding only a portion of expert witness fees. Mr. McCarthy asserts

15

that arborist, Mr. Thibodeaux, was only awarded $2,500 but was owed $6,000.

Mr. McCarthy cites La.R.S. 13:3666 to support their contention that the arborist

was entitled to $6,000. The City argues that Mr. McCarthy only provided a letter

or bill from Mr. Thibodeaux which referenced six invoices without a breakdown of

services to show how the services were billed.

Louisiana Revised Statutes 13:3666, in pertinent part, provides:

A. Witnesses called to testify in court only to an
opinion founded on special study or experience in
any branch of science, or to make a scientific or
professional examinations, and to state the results
thereof, shall receive additional compensation, to
be fixed by the court with reference to the value of
time employed and the degree of learning or skill
required.

B. The court shall determine the amount of the fees of
said expert witnesses which are to be taxed as
costs to be paid by the party cast in judgment
either:

(1) From the testimony of the expert relative to his
time rendered and the cost of his services adduced
upon the trial of the cause, outside of the presence
of the jury, the court shall determine the amount
thereof and include the same.

In Orea v. Scalian, 32,622 (La.App. 2 Cir. 1/26/00), 750 So.2d 483,

the second circuit held that the trial court did not abuse its discretion in awarding a

portion of the expert witness fees sought for an automobile repairman in a car

accident case because the plaintiffs only requested recovery for seven hours of

preparation despite claiming that the expert spent over nine hours preparing and

testifying. The court determined the particular witness was adequately

compensated based on the trial court’s analysis of the expert’s affidavit detailing

time spent examining the truck and at the crash site, in court, and travel time.

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Here, the trial court awarded Mr. Thibodeaux for one site visit,

preparation of the expert report, and the half-day he spent testifying in court. The

invoices submitted did not provide a detailed breakdown to suggest more

preparation. Moreover, there was no affidavit from Mr. Thibodeaux to support that

his services cost $6,000. We uphold the trial court’s award of $2,500 in expert

witness fees to Mr. Thibodeaux, finding the trial court did not abuse its discretion.

V.

CONCLUSION

Based upon the foregoing principles, this court finds the trial court

was not manifestly erroneous in its credibility determinations. Furthermore, this

court affirms the trial court judgment denying specific and general damages and

upholds the expert witness fee of $2,500. Costs of this appeal are assessed to the

Appellant, Earl McCarthy, Sr.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
RULE 2-16.3, UNIFORM RULES—COURTS OF APPEAL.

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