Joshua Simpson v. U v. Insurance Risk Retention Group,inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-625

JOSHUA SIMPSON

VERSUS

U V INSURANCE RISK RETENTION

GROUP, INC., ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-628-15
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and D. Kent Savoie, Judges.

AFFIRMED.

Bryan David Scofield
James T. Rivera
Jessica W. Marchand
Scofield & Rivera, LLC
P. O. Box 4422
Lafayette, LA 70502
(337) 235-5353
COUNSEL FOR DEFENDANT/APPELLANT:
Kenny Ray Young
Specialty Transportation Group, LLC
United Vision Logistics
U V Insurance Risk Retention Group,Inc.

Jeremy N. Morrow
NeunerPate
1001 W. Pinhook Rd., Suite 200
Lafayette, LA 70503
(337) 237-7000
COUNSEL FOR INTERVENOR/APPELLEE:
Steward Steel, Inc.
LCTA Casualty Insurance Company

Blake R. David
Robert B. Brahan, Jr.
Broussard & David, LLC
P. O. Box 3524
Lafayette, LA 70502-3524
(337) 233-2323
COUNSEL FOR PLAINTIFF/APPELLEE:
Joshua Simpson

SAVOIE, Judge.

Defendants Kenny Ray Young, Specialty Transportation Group, LLC, United

Vision Logistics, and UV Insurance Risk Retention Group, Inc. appeal the trial court

judgment in favor of Plaintiff Joshua Simpson. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an automobile accident which occurred on November 5,

2014, on Interstate 10 west of Jennings, Louisiana, between Joshua Simpson and Kenny

Young. Joshua Simpson was employed by Steward Steel, Inc. and driving a Penske

rental delivery truck with the purpose of delivering doors from Lafayette, Louisiana to

Lake Charles, Louisiana. While driving, Mr. Simpson came upon a convoy of 18-

wheelers transporting oversized tanks. Kenny Young was driving one of the 18-

wheelers, which was owned by Specialty Transportation Group. Specialty

Transportation Group leased the 18-wheeler to United Vision Logistics, LLC, a

Lafayette commercial trucking company. As Mr. Simpson was attempting to pass Mr.

Young in the left-hand lane, the accident occurred.

In his petition, Joshua Simpson alleged that Kenny Young failed to yield when

changing lanes, causing an accident which resulted in injuries and damages to Mr.

Simpson. Steward Steel and L.C.T.A. Casualty Insurance Company (L.C.T.A.),

Steward Steel’s insurance carrier, filed an intervention for the purpose of recouping

workers’ compensation benefits paid to Mr. Simpson. A jury trial was held from

February 11-14, 2019, and the jury found Defendants negligent. The jury awarded Mr.

Simpson $1,299,433.00. Defendants filed a Motion for Judgment Notwithstanding the

Verdict and a Motion for New Trial and/or Remittitur. The trial court denied the

motions, except that it reduced the amount of damages for past medical expenses from

$117,174.00 to $61,154.19. The amount of the revised judgment is $1,243,413.19 plus

legal interest and costs. Defendants now appeal.

ASSIGNMENTS OF ERROR

1. The District Court erred in allowing Trooper Babineaux to give opinion
testimony. Thus, a de novo review or new trial is warranted.

2. The District Court erred in excluding the surveillance video. Thus, a
de novo review or new trial is warranted.

3. The District Court erred in excluding the expert testimony of Paul
Fontana. Thus, a de novo review or new trial is warranted.

4. The District Court erred in failing to allow evidence of prior and
subsequent claims. Thus, a de novo review or new trial is warranted.

5. Whether subject to de novo or the manifest error standard of review,
the jury erred in its award of past lost wages.

6. Whether subject to de novo or the manifest error standard of review,
the jury erred in its award of future lost wages/earning capacity.

7. Whether subject to de novo or the manifest error standard of review,
the jury erred in its award of awarding future medical expenses.

8. Whether subject to de novo or the manifest error standard of review,
the jury erred in its award of general damages.

LAW AND DISCUSSION

I. Evidentiary Errors

A. Trooper Babineaux’s Testimony

Trooper Camille Joseph “Joey” Babineaux, Jr., worked for the Louisiana State

Police and responded to the subject accident. Defendants argue that Trooper Babineaux

was improperly allowed to give opinion testimony. Specifically, they complain that he

was able to give opinion testimony regarding Plaintiff’s lack of fault, the position of

Plaintiff’s vehicle, and that the left lane was not clear when Mr. Young moved from the

right lane. Trooper Babineaux was not tendered as an expert witness, and, therefore,

Defendants argue, he could not give opinion testimony.

Defendants cite Yellott v. Underwriters Ins. Co., 04-1342 (La.App. 3 Cir.

8/31/05), 915 So.2d 917, writ denied, 05-249 (La. 4/24/06), 926 So.2d 540, for the
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proposition that a trooper cannot give opinion testimony if the trooper is not tendered

as an accident reconstructionist. In Yellott, the trooper determined the location of the

cars on the roadway at the time of the accident based on skid marks found at the scene.

This court determined:

We recognize that, in some instances, our appellate courts have
affirmed the admission of opinion testimony by police officers who are not
experts, based on their training, investigation, perception of the scene, and
observation of physical evidence. See Eldridge[ v. Carrier, 04-203
(La.App. 3 Cir. 11/17/04),] 888 So.2d 365[, writ denied, 04-3174 (La.
3/1//05), 896 So.2d 66] (citing Cooper v. State Dep’t of Transp. & Dev.,
03–1847 (La.App. 1 Cir. 6/25/04), 885 So.2d 1211, writ denied, 04–1913
(La.11/8/04), 885 So.2d 1142); Bozeman v. State Dep’t of Transp. & Dev.,
34,430 (La.App. 2 Cir. 4/4/01), 787 So.2d 357, writ denied, 01–1341
(La.6/29/01), 794 So.2d 813. Trooper Mann was not tendered as an expert
in accident reconstruction at trial. He possessed experience in accident
investigation, as most troopers do. However, this experience did not
talismanically allow Trooper Mann to determine the location of the
parties[’] vehicles and the resulting cause of the accident. The admission
of this testimony was legal error.

Yellott, 915 So.2d at 926.

Mr. Simpson counters that Louisiana courts have consistently allowed opinion

testimony of an investigating officer based on his or her rational perception of the scene,

in accordance with La.Code Evid. art. 701. He further argues that Defendants failed to

contemporaneously object to the line of questioning during the trial.

In Haas v. Romero, 07-974 (La.App. 3 Cir. 2/20/08), 977 So.2d 196, writ denied,

08-650 (La. 6/6/08), 983 So.2d 917, the plaintiff objected to the trooper’s conclusion

regarding the location of a passenger inside the vehicle. This court found:

Louisiana Code of Evidence Article 701 permits lay witnesses to
offer testimony in the form of opinions or inferences if such testimony is
1) rationally based on the perception of the witness and is 2) helpful to a
clear understanding of his or her testimony or the determination of a fact
in issue. A trial court is afforded broad discretion in permitting testimony
of a lay witness in accordance with Article 701. Eldridge[, 888 So.2d 365];
La.Code Evid. art. 701, comment b. In ruling on this issue, the trial court
remarked that, although Trooper Overfelt was not tendered as an expert,
the jury would be able to assess the weight of his investigative conclusions
given his field experience. We find no abuse of discretion in this
determination.
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Trooper Overfelt explained that, although not a certified accident
reconstructionist, he had investigated thousands of vehicle accidents
during his twenty-five years of experience as a State Trooper. He testified
as to his arrival at the scene, reviewed the details of his crash report, and
explained that he identified the point at which the Romero truck impacted
a parked vehicle before coming to rest. When asked why he had identified
Mr. Leleux as the right front passenger in the report, he denied that it was
based on Mr. Leleux’s statement alone, stating that he believed it was
based on evidence at the scene, including “[w]here the impact occurred,
the way it occurred, when it struck the Vehicle Number 2.” He admitted
that he did not “recall exactly what it was.” He further explained that he
never determined which of the three men was the driver of the vehicle.

The record supports the conclusion that Trooper Overfelt’s
conclusions were based on his rational perception of the scene as is
required by Article 701. Any weight afforded to the statement was within
the province of the jury.

Haas, 977 So.2d at 200.

After a review of the record, we find no error in the admission of Trooper

Babineaux’s testimony. When Plaintiff’s counsel asked Trooper Babineaux to explain

what his investigation revealed, Defense counsel lodged an objection. After a back and

forth, Defense counsel stated that it would be “fine” if Trooper Babineaux read from

his report. Trooper Babineaux then read his report on the record. Later in Trooper

Babineaux’s testimony, Defense counsel did object based on Trooper Babineaux’s lack

of personal knowledge, however, the trial court allowed Trooper Babineaux to answer

because his testimony was based upon his investigation.

Trooper Babineaux stated that he reviews the entirety of the evidence before him

to determine whether a person is in violation of a traffic law. A review of Trooper

Babineaux’s report shows that he made his determinations based on his perceptions at

the scene, the statements of both drivers, and the witness statement of Chad Frederick.

Mr. Frederick was behind the accident when it occurred and witnessed it. Trooper

Babineaux concluded that Mr. Simpson had established himself in the left-hand lane at

the time of the accident.

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Regarding the fault of the parties, Trooper Babineaux testified:

A. All right. During the course of the investigation, everybody thinks that
we do the at fault thing. To me, that’s a bad word. That’s insurance
companies that do the at fault. We determine, if - - if we can, who
committed any type of traffic violations that may have contributed to
the crash. We’re not putting blame or fault on anyone. That’s not what
we do ‘cause insurance can 50/50 fault and all that mess. We don’t get
into that.

What the evidence had showed me that day was Mr. Simpson had
no violations. He was in the left-hand lane.

The jury also heard that Trooper Babineaux had twenty-three years in the field

investigating automobile accidents. He spent his first eight years with the Cameron

Parish Sheriff’s Office before beginning his employment with the Louisiana State

Police, where he has worked for the past fifteen years.

“The district court is awarded vast discretion in its decisions on evidentiary

rulings, and its decision to admit or exclude evidence will not be reversed on appeal

absent a clear showing of abuse of that discretion.” Young v. Joy, 09-756, p. 2 (La.App.

3 Cir. 2/3/10), 30 So.3d 1116, 1119. We find Haas instructive in the present case. The

trooper in Haas had nearly the same years of experience as Trooper Babineaux. The

testimonies were similar in that both testified as to what they saw on the scene and as

to what the witnesses told them to form their conclusions. This is not a case where

Trooper Babineaux measured skid marks to determine where and how fast the 18-

wheelers were moving at the time of the accident, which was the case in Yellott.

An investigating officer is allowed to give testimony based on their rational

perception of the accident scene. The record in this case supports the determination

that Trooper Babineaux’s conclusions were based on his rational perception of the

accident scene. As stated in Haas, “[a]ny weight afforded to the statement was within

the province of the jury.” Haas, 977 So.2d at 200. Trooper Babineaux’s testimony was

proper. This assignment of error has no merit.

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B. Exclusion of the Surveillance Video

Next, Defendants complain that the trial court erred in excluding surveillance

video. On January 2, 2019, Defendants supplemented their discovery responses to

inform Plaintiff that they had a surveillance video in their possession. Defendants

explained that they had “no obligation to produce or describe the requested information

until another supplemental deposition of Plaintiff has been taken.” Defendants had

previously deposed Joshua Simpson on September 28, 2016, and September 18, 2018.

The second time, he was deposed less than five months prior to the trial date and less

than four months before the close of discovery. Mr. Simpson argues that there was no

substantial change in his condition during the intervening four months since his last

deposition, therefore a third deposition was unwarranted. He further argues that

Defendants never formally noticed or moved to compel Plaintiff’s testimony after

supplementing their discovery responses.

The trial court’s scheduling order states:

4) Discovery shall be completed no later than twenty (20) days prior to
the trial date. Ultimately discovery requests are subject to objection on
that basis. The Court will neither compel discovery sought nor consider
motions to compel filed later than twenty (20) days prior to the trial
date.

In addition, Mr. Simpson formally requested all surveillance in discovery served with

the initial petition on October 8, 2015.

Defendants cite the Louisiana Supreme Court decision of Wolford v. Joellen

Smith Psychiatric Hospital, 96-2460 (La. 5/20/97), 693 So.2d 1164, to support their

argument that the trial court should have allowed the surveillance video into evidence.

In Wolford, the court explained:

During the course of pre-trial discovery, plaintiffs requested that defendant
produce any surveillance videotapes in its possession. Defendant admitted
that it had two such tapes in its possession, one made in 1993 and one made
in 1995. However, defendant refused to produce the tapes arguing that it
was entitled to take a supplemental deposition of Mrs. Wolford to question
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her about her physical injuries and activities during the time pictured in
the surveillance videotapes before producing them. Plaintiffs filed a
motion to compel production of the videotapes. Defendant in turn filed a
motion to compel Mrs. Wolford to submit to a supplemental deposition.
The trial judge ordered defendant to immediately disclose the surveillance
videotapes and denied defendant’s request to take a supplemental
deposition prior to the disclosure of the tapes. The court of appeal denied
defendant’s writ application. Upon defendant’s application to this court,
we granted certiorari to review the correctness of the trial judge’s order.

Id. at 1165-66.

The Wolford court discussed “the narrow issue before [it] involving the timing

of the discovery of surveillance videotape in relation to the deposition of the plaintiff.”

Id. at 1166-67. In modifying a previous holding, the court ruled “in favor of a general

rule giving preference to post-deposition disclosure of surveillance materials.” Id. at

1167. Therefore, the case turns on a different issue than the present case, wherein the

issue before us is whether Defendants produced the video in a reasonable time prior to

trial. Despite this, Wolford is instructive. The court stated:

The general rule is that the plaintiff’s deposition precede the production of
the surveillance videotape, absent a showing by the plaintiff of special
circumstances. This rule best serves the overarching purpose of our
system of justice—to search for the truth. Ours is an adversarial system of
justice that relies on the ability and resources of adversaries to uncover the
truth by testing each other’s evidence through a variety of methods, the
most important of which is cross-examination. Moreover, in an adversarial
system, the defendant has a right to a defense and to cross-examination. In
a personal injury case, surveillance videotape can be critical to the
defendant’s defense and ability to effectively cross-examine the plaintiff.
Surveillance materials may thus serve an important function in the search
for truth and, absent special circumstances, their value should be preserved
by delaying their disclosure until after the deposition of the plaintiff.

However, we recognize that surveillance videotape may not be totally
reliable, that it may be taken out of context, and that it is vulnerable to
manipulation through various editing techniques. For these reasons, we
emphasize that although the production of surveillance videotape is to
be delayed until after the plaintiff’s deposition, the plaintiff is entitled
to the videotape a reasonable time before trial, so as to give the
plaintiff ample time to determine any weaknesses in the videotape.
Our rule thus balances the defendant’s need to preserve valuable
potential impeachment evidence for use during cross-examination and
the plaintiff’s need to determine whether the videotape is authentic or
misleading.
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Id. at 1167-68 (emphasis added).

In its oral ruling on the issue, the trial court ruled:

Okay. I read the Wolford case, gentlemen, and I am able to determine
in that case, of course, that it’s important that this surveillance is - - that
the deposition’s taken before the surveillance according to the Supreme
Court unless there’s, so to speak, exigent circumstances. I also realize that
the plaintiff - - or the plaintiff’s argument is when he comes in and says,
you know, I have no time to depose anyone or prior to see if the
surveillance as that case indicated that it’s totally reliable, not out of
context, et cetera, and the time period involved. In Wolford, of course,
there was a deposition - - a second deposition being requested some four
years after the first one, also that the - - the plaintiff in that case had not
requested the production of the surveillance videotapes until 1996. That’s
quite some time after the case was - - began. Here, the surveillances were
requested at the time of filing of the petition, and I realize that both of you
have good legitimate arguments in connection with the surveillance tape.
But we’re at trial time and we’re taking to trial and I don’t know when
you’re going to be able to take these depositions or - - or, first of all, take
the deposition, second of all, on the plaintiff’s side, verify the context, et
cetera or do the ex- - - the exploration to, in fact, respond to the deposition
or to the contents of the deposition. In connection with that, I’m going to
deny your - - your motion or uphold the motion - - grant the motion to
exclude the surveillance.

Joshua Simpson requested production of surveillance videos with his original

petition in October 2015, Mr. Simpson had previously been deposed twice, the last time

less than five months prior to trial, and Defendants informed counsel for Mr. Simpson

on January 2, 2019, of the existence of the surveillance video with trial set on February

11, 2019. Defendants did not disclose the surveillance video to Plaintiff within a

reasonable time prior to trial. For these reasons, we find no abuse of the trial court’s

discretion in excluding the surveillance video.

C. Exclusion of Paul Fontana’s Expert Testimony

Defendants complain that the trial court improperly excluded the testimony of

Paul Fontana, a physical therapist with The Fontana Center in Lafayette, Louisiana.

Mr. Fontana was retained by Defendants to critique the Functional Capacity

Examination (FCE) of Joshua Simpson performed by Christopher Hoffpauir, Mr.

8

Simpson’s physical therapist at Rosewood Rehabilitation. Mr. Hoffpauir concluded

that Joshua Simpson was only capable of performing light duty. Defendants argue that

Mr. Fontana’s qualifications and methodology were never challenged by anything but

argument. Defendants contend that it was prejudicial, legal error to exclude Mr.

Fontana’s testimony, and, therefore, Defendants are entitled to a new trial.

Plaintiff argues that Paul Fontana was properly excluded from testifying at trial.

Defendants produced Mr. Fontana’s report, dated January 4, 2019, on January 10, 2019.

Trial was set for February 11, 2019. Mr. Simpson contends that Mr. Fontana’s report

offered no new evaluation of Joshua Simpson’s functional work capacity. Rather, it

critiqued Mr. Hoffpauir’s report. In fact, Mr. Fontana’s report could not have been an

evaluation of Mr. Simpson’s functional work capacity because Mr. Fontana never

actually evaluated Joshua Simpson, never spoke to Mr. Simpson’s treating physicians,

and he never reviewed Mr. Simpson’s medical records. Plaintiff asserts that Mr.

Fontana’s report did not identify any criteria, published literature or other evidence to

support his critique of Mr. Hoffpauir’s report. For these reasons, Plaintiff contends that

Mr. Fontana’s testimony was properly excluded.

Louisiana Code of Evidence Article 702(A) provides the standard for

admissibility of expert testimony. The article states:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or
otherwise if:

(1) The expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and methods; and

(4) The expert has reliably applied the principles and methods to the facts
of the case.

9

In Blair v. Coney, 19-795, pp. 8-9 (La. 4/3/20), ___So.3d___, ___, the Louisiana

Supreme Court explained the law pertaining to the exclusion of expert witnesses thus:

The district court performs the important gatekeeping role of ensuring
“that any and all scientific testimony or evidence admitted is not only
relevant, but reliable.” Cheairs[ v. State ex rel. Dep’t of Transp. and Dev.,
03-680, p. 7 (La. 12/3/03)], 861 So. 2d [536,] 541 (citing Daubert [v.
Merrell Dow Pharmaceuticals, Inc.], 509 U.S. [579,] 589, 113 S.Ct. 2786).
Accordingly, a district court is afforded broad discretion in determining
whether expert testimony is admissible, and its decision with respect
thereto shall not be overturned absent an abuse of that discretion. Cheairs,
861 So. 2d at 541 (citing State v. Castleberry, 98-1388 (La. 4/13/99), 758
So. 2d 749, 776); see also C.E. art. 702, cmt (d) (“[b]road discretion should
be accorded the trial judge in his determination as to whether expert
testimony should be held admissible and who should or should not be
permitted to testify as an expert.”); State v. Foret, 628 So. 2d 1116, 1123
(La. 1993) (“The admission of the evidence [is] subject to the discretion
of the trial judge.”) (internal quotations omitted); Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 142, 119 S. Ct. 1167, 1171, 143 L. Ed. 2d 238
(1999) (finding the gatekeeping role of the district court recognized in
Daubert applies to all forms of expert testimony).

In exercising its gatekeeping duty, the district court must be mindful of
the balancing of interests set forth in C.E. art. 403 – i.e., whether the
probative value of the expert testimony outweighs its prejudicial effect –
as an expert’s testimony can be misleading and prejudicial if this role is
not properly satisfied. C.E. art. 403 (“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.”); see State v. Foret, 628
So. 2d at 1122 (finding the use of Child Sexual Abuse Accommodation
Syndrome-based testimony for the purpose of bolstering a witness’s
credibility creates a risk of prejudice that outweighs its questionable
probative value).

In discussing the applicability of La.Code Evid. Art. 702(A), the Blair court

stated, “Failure of the witness to qualify as an expert pursuant to the introductory

paragraph of C.E. art. 702(A) or failure of the testimony to meet any of the indicia of

reliability or relevancy set forth in C.E. art. 702(A)(1) through (A)(4) will render the

testimony inadmissible.” Blair, ____ So.3d at ___ (emphasis in original).

The Blair court discussed Godchaux v. Peerless Ins. Co., 13-1083 (La.App. 3 Cir.

6/4/14), 140 So.3d 817, writ denied, 14-1411 (La. 10/3/14), 149 So.3d 801, a case out

of our circuit. The supreme court explained:
10

The Third Circuit Court of Appeal addressed the admissibility of Dr.
Bain’s testimony in Godchaux v. Peerless Ins. Co., 2013-1083 (La. App.
3 Cir. 6/4/14), 140 So. 3d 817, a case wherein plaintiffs argued that the
jury failed to provide sufficient damage awards and that such failure was
related to the district court’s error in admitting Dr. Bain’s testimony. Id. at
1. In Godchaux, Dr. Bain was introduced as an expert in biomechanics and
injury causation analysis. Id. at 3. The court noted that Dr. Bain never
spoke to plaintiff, never contacted plaintiff’s physicians, never visited the
accident scene, never inspected plaintiff’s vehicle, never spoke with a
damage appraiser, did not know the body position of the plaintiff at the
time of the accident, did not consider the angle of impact or the dimensions
of the vehicular head rack that struck plaintiff’s vehicle, and failed to
conduct an analysis of force using the same type of vehicle involved in the
collision. Id. at 8.

The court of appeal in Godchaux reversed the district court’s ruling
admitting Dr. Bain’s testimony, finding that although Dr. Bain likely
qualified as an expert in biomechanics and injury causation analysis, his
opinions and methods were nonetheless unreliable. Id. at 4. Considering
that Dr. Bain did not recreate the actual accident and only relied on a crash
analysis of a different make and model to assess the force asserted on the
plaintiff’s vehicle, the Godchaux court concluded Dr. Bain’s findings were
“inherently suspect” without evidence of support from the scientific
community. Id. at 8. Since Dr. Bain did not testify as to the reliability or
potential errors in the crash analysis, the court found the comparative data
on which he relied was also “inherently suspect.” Id. Moreover, the court
held that Dr. Bain’s testimony did not assist the jury in determining a fact
in issue, reasoning that force-of-impact testimony cannot be used to
disprove causation. See id. at 9.10 Accordingly, the court of appeal in
Godchaux found that the trial court abused its discretion in permitting Dr.
Bain to testify. Id. at 10. A writ application was filed with this Court, which
we denied. Godchaux v. Peerless Ins. Co., 2014-1411 (La. 10/3/14), 149
So. 3d 801.

It is clear from the record that the trial court struggled with finding a basis for

Mr. Fontana’s methodology. Defense counsel was questioned multiple times about Mr.

Fontana’s principles and methods. It is not clear from Mr. Fontana’s report what

methodology he used, therefore, it cannot be determined if the methodology is reliable.

Furthermore, Mr. Fontana never evaluated Joshua Simpson, never spoke to Mr.

Simpson’s treating physicians, and he never reviewed Mr. Simpson’s medical records.

In light of Blair and Godchaux, we find that the trial court did not abuse its discretion

in excluding Mr. Fontana from testifying as an expert witness in this matter.

D. Failure to Allow Evidence of Prior or Subsequent Claims
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Defendants next complain that they should have been allowed to introduce

evidence of Joshua Simpson’s prior claims. Mr. Simpson was previously involved in

an automobile accident in 2012, which required treatment for injuries to his neck. He

was also involved in minor accidents in 2005 and 2007.

A review of the record shows that the trial court granted the motion in limine as

it pertained to evidence of prior claims and settlements, but allowed Defendants to

introduce evidence of Mr. Simpson’s prior injuries and treatment. Defense counsel

questioned Mr. Simpson extensively regarding his prior collisions, and his injuries and

treatment as a result of those collisions. Dr. David Muldowny, a physician with the

Lafayette Bone & Joint Clinic and Joshua Simpson’s treating physician, was also

questioned about Mr. Simpson’s previous accidents and injuries.

This court in Edmond v. Guillory, 18-437, p. 1 (La.App. 3 Cir. 2/6/19)

(unpublished opinion), explained:

The trial court has great discretion in its consideration of evidentiary
matters such as motions in limine. Heller v. Nobel Ins. Group, 2000-261
(La. 2/2/00), 753 So.2d 841; Furlough v. Union Pacific RR Co., 33,658
(La.App. 2 Cir. 8/31/00), 766 So.2d 751, writ denied, 2000-2929 (La.
1/12/01), 781 So.2d 556. On review, the appellate court must determine
whether the trial court abused its great discretion in ruling on a motion in
limine.

In Ewell v. Schwegmann Giant Super Markets, 499 So.2d 1192 (La.App. 3 Cir.

1986), the plaintiff denied a previous back injury and the treatment he received for it.

Along with the trial court, this court found that the plaintiff lacked credibility and found

the plaintiff’s testimony to be questionable. In allowing evidence of prior injury and

claims, the court determined:

[E]vidence of prior injury and claims is admissible insofar as they bear
upon any issue before the court, including credibility, and to establish
whether the disability is causally related to the particular accident. Meyers
v. Employers Liability Assurance Corp., 176 So.2d 658 (La.App.1965).
Thus, plaintiff’s objection on grounds of irrelevancy to the trial judge’s
admitting into evidence testimony of his past injuries is also without merit.

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Id. at 1195.

Defendants cite Brown v. Diamond Shamrock, Inc., 95-1172 (La.App. 3 Cir.

3/20/96), 671 So.2d 1049, for the proposition that evidence of prior claims are

admissible. In that workers’ compensation case, the claimant denied ever having filed

a claim for disabling injuries. This court determined that, “[w]hile the prejudicial effect

of this evidence of a prior claim admittedly makes this issue close,” evidence of prior

claims could be used for impeachment purposes. The court in Ronquillo v. Belle Chase

Marine Transp., Inc., 629 So.2d 1359 (La.App. 4 Cir. 1993), also allowed evidence of

prior claims for impeachment purposes.

In the present case, there is no indication by Defendants that evidence of prior

claims was necessary to impeach the testimony of Joshua Simpson. There is no

evidence that he ever denied the prior accidents or the injuries that he sustained as a

result of the accidents. His credibility has not been called into question. Furthermore,

Mr. Simpson was questioned at length about these prior accidents and injuries as was

his treating physician, Dr. Muldowny. We do not see how Defendants were prejudiced

by the exclusion of this evidence. Therefore, we find the trial court did not abuse its

discretion in excluding evidence of Mr. Simpson’s prior claims and settlements.

II. Damages

A. Past Lost Wages

The jury awarded Joshua Simpson $148,720.00 in “Past Loss of Income &

Income Capacity” damages. Defendants argue that this amount is not supported by the

evidence.

This court set forth the standard in determining past lost wages and
stated that: “Lost wages ‘need not be precisely proven, they must be shown
with reasonable certainty.’ ” Taylor v. Premier Ins. Co., 98-1935, p. 7
(La.App. 3 Cir. 6/30/99); 742 So.2d 35, 40 (citations omitted). “An award
for lost past wages can be ‘computed on the amount the plaintiff would
have in all probability’ earned had he been able to work.” Id. at pp. 7–8;
40. (Citations omitted). This court has consistently held that a plaintiff’s
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uncorroborated testimony is sufficient to prove lost wages as long as such
proof is uncontradicted and reasonably establishes his claim. Green v.
Superior Oil Co., 441 So.2d 54 (La.App. 3 Cir.1983); Richard v. Teague,
92–17(La.App. 3 Cir. 5/4/94); 636 So.2d 1160, writ denied, 94–1934
(La.11/11/94); 644 So.2d 388. “It is well settled that factual conclusions
of the trial judge particularly where the credibility of a witness is involved,
are entitled to great weight and will not be disturbed upon appeal.” Charles
v. Arceneaux Ford, Inc., 542 So.2d 846, 850 (La.App. 3 Cir.1989)
(citations omitted).

Skipper v. Berry, 99-1433, p. 8 (La.App. 3 Cir. 3/15/00), 762 So.2d 56, 61-62.

Defendants argue that the calculations of Plaintiff’s expert witness in this area,

John Theriot, was less than the amount awarded by the jury. Mr. John Theriot, the

Plaintiff’s expert witness in economics, testified that his calculations for Mr. Simpson’s

lost earning capacity totaled $115,494.00, plus $16,897.00 in fringe benefits. Adding

these together equates to $132,391.00. Therefore, Defendants argue that the jury award

for these damages is not supported by the evidence. The difference between the jury

award and Mr. Theriot’s calculation is $16,329.00. Defendants also argue that Mr.

Simpson did not receive fringe benefits with his job at Steward Steel, and, therefore,

the award should be reduced by this amount as well.

Plaintiff points to testimony by Jeff Peterson, his vocational rehabilitation expert,

that Joshua Simpson worked fifty hours the week before the accident, earning ten hours

of overtime. He further testified that Joshua Simpson’s actual annual earnings at

Steward Steel ranged between $27,040.00, which included no overtime, to $40,045.00,

which did include overtime. Joshua Simpson testified that in his position at Steward

Steel he was able to work as much overtime as he liked. He was paid $13.00 per hour,

plus overtime of $19.50 per hour. Regarding Mr. Theriot’s testimony, his expert report

explained that his calculations used the most conservative amount earned by Mr.

Simpson, which was his income that did not include overtime or $27,040.00.

Plaintiff argues that the jury was not limited to Mr. Theriot’s conservative

calculations where no overtime was utilized, but rather the jury was able to rely on the
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totality of the evidence. Plaintiff further contends that the jury’s actual award was fully

supported by the evidence. For example, had the jury used $40,045.00, which was Jeff

Peterson’s calculation of Mr. Simpson’s annual earnings with overtime, Joshua

Simpson’s past lost earning would have totaled $170,992.15. This calculation does not

include any amount for fringe benefits. Plaintiff points out that this amount is higher

than the jury’s actual award for lost wages.

Based on the evidence before us, we find that the jury did not abuse its discretion

in the amount awarded to Joshua Simpson for his past lost wages claim.

B. Future Lost Wages/Earning Capacity

The jury awarded Joshua Simpson $371,800.00 for “Future Loss of Income &

Earning Capacity.” Mr. Theriot testified that Mr. Simpson’s future lost wages would

fall within a range of $152,673.00 to $441,058.00, depending on how many hours per

week he worked. Defendants argue that the amount awarded is too high and should be

reduced.

In Myers v. Broussard, 96-1634, pp. 18-19 (La.App. 3 Cir. 5/21/97), 696 So.2d

88, 98, this court explained:

Before [the plaintiff] can recover for her loss of future earning capacity,
she must prove the loss, not with mathematical certainty, but with
reasonable certainty. Gauthier v. Kansas City S. R. Co., 96–529 (La.App.
3 Cir. 11/6/96); 682 So.2d 993, writ denied, 96–2918 (La.1/24/97); 686
So.2d 867. Future loss of earnings is inherently speculative and must be
proven with a reasonable degree of certainty; purely conjectural or
uncertain future lost earnings will not be allowed. Perritt v. Commercial
Union Ins. Co., 95–1274 (La.App. 3 Cir. 3/13/96); 673 So.2d 215, writ
denied, 96–1751 (La.10/11/96); 680 So.2d 644. An award for loss of future
earning capacity is not based merely upon the difference between the
injured person’s pre-accident wages and post-accident wages but rather it
should be based on the difference between the injured person’s earning
capacity before and after the accident. Hollie v. Beauregard Parish Police
Jury, 96–198 (La.App. 3 Cir. 8/28/96); 680 So.2d 1218.

In determining the proper amount to be awarded, the trier of fact
should consider the injured person’s age, life expectancy, work life
expectancy, investment income factor, productivity increase, prospects for
rehabilitation, probable future earning capacity, loss of future earning
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capacity, loss of earning ability, and inflation. Gauthier, 96–529; 682
So.2d 993. Our review of this award is governed by the manifest error
standard. Veazey v. State Farm Mut. Auto. Ins., 587 So.2d 5 (La.App. 3
Cir.1991). “The appellate question is not whether a different award may
have been more appropriate, but whether the trial court’s award can be
reasonably supported by the record.” Id. at 7.

Mr. Theriot testified that Mr. Simpson’s future lost wages would fall within a

range of $152,673.00 to $441,058.00, depending on how many hours per week he

worked. Joshua Simpson’s age at the time of trial was forty-three years, and he had a

work life expectancy of 15.4 years. This means that the jury awarded Mr. Simpson

$24,142.86 per year for the duration of his expectant work life.

Defendants further argue that Joshua Simpson did not sustain a loss of earning

capacity. They contend that Mr. Simpson previously owned and operated his own

lumber service, earning a substantial income of over $133,000.00 per year. Plaintiff

counters that vocational rehabilitation expert Jeff Peterson explained that “the chances

of [Joshua] getting back into something like that, it’s one of those things where it’s nip

to nil.”

Considering the foregoing, we find the jury’s award in the amount of

$371,800.00 for future lost pages and loss of earning capacity is reasonably supported

by the record. The jury did not abuse its discretion in the amount of the award. This

assignment is without merit.

C. Future Medical Expenses

Joshua Simpson was awarded $171,739.00 in “Future medical expenses” by the

jury. Defendants argue this award should be reduced because the life care plan is filled

with mistakes.

“To recover future medical expenses, the plaintiff must present medical

testimony to show that it is more probable than not that future medical treatment is

indicated and the probable cost of the treatment.” Smith v. Municipality of Ferriday,

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05–755, pp. 11-12 (La.App 3 Cir. 2/1/06), 922 So.2d 1222, 1231, writ denied, 06–934

(La. 9/29/06), 937 So.2d 860. Defendants do not dispute the need for future treatment,

but rather disagree with the cost of said treatment.

Mr. Jeff Peterson drafted Joshua Simpson’s life care plan at issue in this

assignment of error. On the witness stand, he admitted that he mistakenly overestimated

the number of future annual visits to Dr. Muldowny and also mistakenly included

prescriptions for the medications Remeron and Wellbutrin. Mr. Theriot, Plaintiff’s

economist, testified after Mr. Peterson about Mr. Simpson’s life care plan. On re-direct

examination, Mr. Theriot testified:

Q. You - - you read some numbers on the life-care plan as well, didn’t
you?

A. Yes, I did.

Q. And - - and you - - you updated your life-care plan to - - to record
that Wellbutrin and [Remeron] coming out as well as having the
appropriate number of visits for Dr. Muldowny, correct?

A. Yes, I did.

Q. And that life - - that’s the life-care plan that Dr. Berard, and Dr.
Muldowny, and Dr. Hodges endorsed and Dr. - - and - - and Jeff Peterson
put together who we just talked to?

A. That’s my understanding, yes.

Mr. Theriot was then asked about his calculation of Joshua Simpson’s future

medical expenses in the life care plan. He stated:

Q. And so what is that number?

A. Yes, so the number - - the calculation I made after the adjustment
that Mr. Peterson talked about that he said the - - the one mistake that I did
- - that he did tell me about in the back so I - - I re - - - before he got on
the witness stand. So I made that calculation, and it was $171,739.00.

Q. Okay. And that’s based on the testimony of Dr. Muldowny, and Dr.
Hodges, and Dr. Berard, and their recommendations to Jeff Peterson
having Muldowny just see Mr. Simpson one time for the next nine years
and taking out those two medications that Dr. Berard now said are only
possibilities not probabilities, correct?
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A. That’s correct.

Q. $171,739.00?

A. That’s right.

Therefore, while Defendants complain about mistakes in the life care plan, those

mistakes were corrected by the testimony of Plaintiff’s economist, Mr. Theriot. It is no

coincidence that the jury awarded Mr. Simpson future medical expenses in the exact

amount calculated by Mr. Theriot after the mistakes were rectified. In Menard v.

Lafayette Ins. Co., 09-1869, p. 13 (La. 3/16/10), 31 So.3d 996, 1006, the Louisiana

Supreme Court explained:

[I]t is well acknowledged an award for future medical expenses is in great
measure highly speculative and not susceptible to calculation with
mathematical certainty. Highlands [Ins. Co. v. Missouri Pacific R. Co.],
532 So.2d [317,] 324 [(La.App. 3 Cir. 1988)]. It follows, therefore, such
awards “generally do not involve determining the amounts, but turn on
questions of credibility and inferences, i.e., whose experts and other
witnesses does the jury believe?” Maraist & Galligan, supra, § 7.02, 7–4.

The jury clearly found Mr. Theriot to be credible on this issue as they used the amount

he calculated, after revision, in its award of future medical expense to Mr. Simpson.

“An appellate court, in reviewing a jury’s factual conclusions with regard to

special damages, must satisfy a two-step process based on the record as a whole: there

must be no reasonable factual basis for the trial court’s conclusion, and the finding

must be clearly wrong.” Id. at 1007. We find that there is a reasonable factual basis

for the jury’s decision to award future medical expenses to Joshua Simpson in the

amount of $171,739.00, and we do not find that it is clearly wrong. This assignment

has no merit.

D. General Damages

The jury awarded Joshua Simpson $80,000.00 in “Past Pain, Suffering & Mental

Anguish,” $200,000.00 in “Future Pain, Suffering, & Mental Anguish,” $60,000.00 in
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“Past Loss of Enjoyment of Life,” and $150,000.00 in “Future Loss of Enjoyment of

life” for a total of $490,000.00 awarded in general damages. Defendants contend that

this amount is too high, arguing that Joshua Simpson’s injuries pre-dated the accident.

The Louisiana Supreme Court in Wainwright v. Fontenot, 00-492, p.6 (La.

10/17/00), 774 So.2d 70, 74, set forth the standard to be used by an appellate court when

reviewing a quantum award, stating:

The assessment of “quantum,” or the appropriate amount of
damages, by a trial judge or jury is a determination of fact, one entitled to
great deference on review. As such, “the role of an appellate court in
reviewing general damages is not to decide what it considers to be an
appropriate award, but rather to review the exercise of discretion by the
trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260
(La.1993). Moreover,

before a Court of Appeal can disturb an award made by a
[factfinder,] the record must clearly reveal that the trier of fact
abused its discretion in making its award. Only after making
the finding that the record supports that the lower court
abused its much discretion can the appellate court disturb the
award, and then only to the extent of lowering it (or raising it)
to the highest (or lowest) point which is reasonably within the
discretion afforded that court.

Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal
citations omitted).

Dr. Muldowny treated Mr. Simpson for his previous injury, as well as his injuries

as a result of this accident. Speaking of whether Joshua Simpson’s injuries were new

injuries caused by the accident at issue, Dr. Muldowny testified:

Q. And do you, in your expert opinion, think that Joshua Simpson had a
new injury in this accident or was it an aggravation of an old injury?
What’s your opinion about that?

A. I think it was a new injury. Enough time had gone by when he was
pain free to - - to suggest that it’s a new injury.

Joshua Simpson testified:

Q. And in the - - in the, say, five or six months before this accident, five
months before this accident, when you were working doing the brickwork
and then working for Steward Steel doing this heavy work, were you
taking any prescription medication:
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A. No, sir.

Q. Any even over-the-counter medication:

A. No, sir.

Joshua Simpson further testified that, prior to the accident, he was performing

heavy labor as a mortar mixer. Therefore, the jury heard testimony that, prior to the

accident, Mr. Simpson was off of all of his pain medications and was working heavy

labor. Dr. Muldowny further testified:

Q. And given - - and - - and we’re going to fast forward now, but - - but -
- but given your records and your - - your history of treatment with Joshua
Simpson and your expertise, the condition you treated him for and that he
eventually had surgery for, could he have done the heavy lifting he was
doing before with those type of symptoms and that type of injury?

A. I don’t believe so, no.

Dr. Berard is a medical psychologist who treated Joshua Simpson as a result of

this accident. He testified regarding Mr. Simpson’s psychological issues, depressive

disorder, anxiety disorder, erectile dysfunction, and chronic pain syndrome. He

testified:

Q. And so your diagnosis when you first saw [Joshua Simpson] was what?

A. My diagnosis was, number one, male erectile dysfunction based - -

Q. What caused that?

A. The cause is the combination, in my opinion, of the psychological
overlay correlated with pain and the changes in the neurochemistry
correlated with or based on the acute experience of pain during the act that
releases a neurotransmitter hormone called norepinephrine which is the
part of what cases the erectile dysfunction. So you have the physical, the
neurochemistry, and the psychological overlay, and, of course, the effect
of these medications will affect a person’s ability to function in a normal
way.

Q. And - - and so there was that, and then you have pain disorder,
depression, and adjustment disorder?

20

A. The pain disorder, yes, is consistent with what we’ve already testified.
It’s based on the medical findings by Dr. Muldowny which involves
imagining studies and validates there’s a physical basis for his pain.

The other diagnostic entity is a depressive disorder. He
presented to me with symptoms consistent with depression, but consistent
with a major depression to include suicidal thoughts and death wishes. The
other - -

Q. It wasn’t - - it wasn’t that far. I got you.
Go ahead.

A. And the other diagnostic entity is an anxiety disorder, and it’s not to a
perceived level of intensity as a generalized anxiety disorder, but it’s
more transient and part of the disability and the complications
experienced in his life as a result of the chronic pain.

While Defendants argue that Mr. Simpson’s injuries pre-dated this accident, we

defer to the jury’s evaluation of the witness’s credibility and the firsthand evidence. See

Bouquet v. Wal-Mart Stores, Inc., 08-309 (La. 4/4/08), 979 So.2d 456. The jury clearly

found Dr. Muldowny to be credible and believed his assessment that Joshua Simpson’s

injuries are a result of the subject accident. Further, based on the testimony and

evidence in the record, we find that the jury was well within its discretion in the amount

it awarded to Mr. Simpson for general damages. Accordingly, this assignment of error

lacks merit.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed. Costs of these

proceedings are assessed to Defendants Kenny Ray Young, Specialty Transportation

Group, LLC, United Vision Logistics, and UV Insurance Risk Retention Group, Inc.

AFFIRMED.

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