Mohab Said v. Federated Rural Electric Insurance Exchange

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-915

MOHAB SAID

VERSUS

FEDERATED RURAL ELECTRIC INSURANCE

EXCHANGE, ET AL.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2013-0786-A
HONORABLE MARTHA ANN O'NEAL, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

AFFIRMED.

Jeffrey A. Mitchell
Monica C. Sanchez
Hugo L. Chanex
The Cochran Firm – New Orleans
3850 N. Causeway Blvd., Suite 1500
Metairie, LA 70001
(504) 309-5000
COUNSEL FOR PLAINTIFF/APPELLANT:
Mohab Said

Charles S. Jones
Charles A. Sam Jones, III, Inc.
105 N. Stewart Street
Deridder, LA 70634
(337) 463-5532
COUNSEL FOR PLAINTIFF/APPELLANT:
Mohab Said

Andy Dupre
Gary M. Carter Jr.
Carter Dupre LLP
2401 Westbend Parkway
Suite 3070
New Orleans, LA 70114
(504) 459-2309
COUNSEL FOR PLAINTIFF/APPELLANT:
Mohab Said

Kenneth R. Spears
Claudia H. Gary
Jeffery D. Fruge
Spears & Gary, LLC
One Lakeshore Drive, Suite 900
Lake Charles, LA 70629
(337) 513-4333
COUNSEL FOR DEFENDANT/APPELLEE:
Federated Rural Electric Insurance Exchange
Beauregard Electric Cooperative Inc.

SAUNDERS, Judge.

This case involves an appeal from the verdict of a personal injury jury trial

wherein the plaintiff recovers for some, but not all, injuries he allegedly sustained in

an automobile accident. The plaintiff alleges errors by the trial court in denying his

request for his treating physicians to testify as experts based on the pretrial order,

allowing violations of the collateral source rule, and issuing erroneous and

conflicting jury instructions. Further, the plaintiff asserts error by the jury in failure

to award full past medical expenses.

FACTS AND PROCEDURAL HISTORY:

On December 30, 2011, Mohab Said (Said) was riding in the rear passenger

side of a Ford Focus car. As it was traveling through Elizabeth, Louisiana, the Focus

was struck on the rear passenger side by a truck owned by Beauregard Electric

Cooperative.

Said visited several local physicians after the accident and was diagnosed with

a brain injury by two physicians while a third ordered an MRI to be performed. The

third physician was unable to find anything unusual on the MRI results.

Thereafter, Said moved to Washington, D.C. where, in 2014, he began

treatment with Dr. Macedo. Another MRI was ordered that indicated a white matter

spot on the frontal lobe of Said’s brain. Dr. Macedo then referred Said to a

neuropsychologist who found cognitive impairments. In 2015, the Veterans

Administration (VA) declared Said disabled with a brain injury.

In December of 2012, Said sued the Beauregard Electric Cooperative, its

insurer Federated Rural Electric Exchange, and Jimmy Ray Craft, the driver of the

truck, for pain and suffering, mental anguish, past and future medical expenses, lost

wages, loss of earning capacity, loss and impairment of life’s pleasures, and

disability. Craft was later voluntarily dismissed, and the case proceeded against the

electric co-op and its insurer (collectively “defendants”).

After various discovery, a trial date was set and the trial court entered a pre-

trial order directing the parties to file a witness list, which included a requirement

that the parties designate their witnesses as lay witnesses or expert witnesses. Said

designated some of his physicians as both treating physicians and experts, but others

only as treating physicians. Based on the differing designations, defendants filed a

motion in limine to limit the testimony of the physicians not labeled as experts. The

trial court granted the motion, and, thereafter, at trial, limited the testimony of those

physicians labeled only as “treating physicians” to testimony as to the diagnosis at

the time of treatment.

Said also filed pretrial motion in limine to exclude evidence that he received

VA disability. The trial court granted only part of the motion, allowing Said’s status

as disabled to be introduced, but not that Said received disability benefits.

Near the beginning of the trial, the trial court advised the jury that instructions

on the law would be given at the end of the trial and that part of a jury’s duty is

weigh each witnesses’ testimony, whether they are lay person, a doctor that’s a

treating physician or an expert. At the end of the trial, the trial judge gave the jury

instruction that the testimony of a treating physician is to be given greater weight.

After the trial and deliberations, the jury awarded Said $42,428.00, which

included $20,000.00 for pain and suffering, $10,000.00 for mental anguish and

suffering, and $12,428.00 for past medical expenses. The jury awarded nothing for

future medical expenses, lost wages, loss of earning capacity, loss of enjoyment of

life, and permanent disability. Said then filed this devolutive appeal alleging four

assignments of error.

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ASSIGNMENTS OF ERROR:

[1]. The district court abused its discretion in refusing to
qualify the plaintiffs’ local treating physicians as experts and limiting
their testimony.

[2]. The district court abused its discretion, and violated the
collateral source rule, in admitting evidence that the plaintiff was on
disability from the VA.

[3]. The district court legally erred in issuing erroneous and
conflicting jury instructions on the weight of the testimony of the
treating physicians.

[4]. The jury committed manifest error in failing to award the
plaintiff his full past medical expenses as shown by his medical bills.

ASSIGNMENT OF ERROR NUMBER ONE:

In his first assignment of error, Said argues that the trial court abused its

discretion in refusing to qualify his local treating physicians as experts and limiting

their testimony. We find merit to this assignment.

“A district court is accorded broad discretion in determining whether expert

testimony should be held admissible and who should or should not be permitted to

testify as an expert.” Cheairs v. State Dep’t. of Transp. and Dev., 03-680, p. 6

(La.12/3/03), 861 So.2d 536, 541. Likewise, a trial court has discretion regarding

issuing a pretrial order and how strictly to adhere to that pretrial order under La.Code

Civ.P. art. 1551.

Louisiana Code of Civil Procedure article 1551 states:

A. In any civil action in a district court the court may in its discretion
direct the attorneys for the parties to appear before it for conferences to
consider any of the following:

(1) The simplification of the issues, including the elimination of
frivolous claims or defenses.

(2) The necessity or desirability of amendments to the pleadings.

(3) What material facts and issues exist without substantial
controversy, and what material facts and issues are actually and
in good faith controverted.
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(4) Proof, stipulations regarding the authenticity of documents,
and advance rulings from the court on the admissibility of
evidence.

(5) Limitations or restrictions on or regulation of the use of
expert testimony under Louisiana Code of Evidence Article 702.

(6) The control and scheduling of discovery including any issues
relating to disclosure or discovery of electronically stored
information, and the form or forms in which it should be
produced.

(7) Any issues relating to claims of privilege or protection of trial
preparation material, and whether the court should include
agreements between counsel relating to such issues in an order.

(8) The identification of witnesses, documents, and exhibits.

(9) The presentation of testimony or other evidence by electronic
devices.

(10) Such other matters as may aid in the disposition of the
action.

B. The court shall render an order which recites the action taken
at the conference, the amendments allowed to the pleadings, and the
agreements made by the parties as to any of the matters considered, and
which limits the issues for trial to those not disposed of by admissions
or agreements of counsel. Such order controls the subsequent course of
the action, unless modified at the trial to prevent manifest injustice.

C. If a party’s attorney fails to obey a pretrial order, or to appear
at the pretrial and scheduling conference, or is substantially unprepared
to participate in the conference or fails to participate in good faith, the
court, on its own motion or on the motion of a party, after hearing, may
make such orders as are just, including orders provided in Article 1471
(2), (3), and (4). In lieu of or in addition to any other sanction, the court
may require the party or the attorney representing the party or both to
pay the reasonable expenses incurred by noncompliance with this
Paragraph, including attorney fees.

D. If a suit has been pending for more than one year since the
date of filing of the original petition and no trial date has been assigned,
upon motion of any party, the court shall set the matter for conference
for the purpose of resolving all matters subject to the provisions of this
Article, including the scheduling of discovery, assignment for trial, and
any other matters that will expedite the resolution of the suit. The
conference may be conducted in chambers, by telephone, or by video
teleconference.

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“The discretion for adherence to a pretrial order is based on prevention of

injustice by surprisingly having to litigate an issue while unprepared.” Richard v.

Quality Const. and Prod., LLC, 18-965, p. 4 (La.App. 3 Cir. 6/5/19), 275 So.3d 328,

333, writ denied 19-1101 (La. 10/8/19), 280 So.3d 591. “While pre-trial orders assist

the trial court in the orderly management of its cases, La.C.C.P. Art. 1551 does not

authorize severe limitation of a party’s rights for the technical, though justifiable,

violation of a pre-trial order.” Neff v. Rose, 546 So.2d 480, 483 (La.App 4 Cir.), writ

denied, 551 So.2d 1322 (La.1989). Although “a trial judge has great discretion in

deciding whether to receive or refuse the testimony objected to on the grounds of

failure to abide by the rules,” any doubt must be resolved in favor of receiving the

information. Curry v. Johnson, 590 So.2d 1213, 1216 (La.App. 1 Cir.1991).

In Griffin v. Tenneco Oil Co., 625 So.2d 1090 (La.App. 4 Cir.1993), writ

denied, 93-2710 (La. 1/7/94), 631 So.2d 449, an oil company’s witness was properly

allowed to testify as an expert, even though he was not designated as expert on the

pretrial order. The ruling of our sister court was based on the lack of ambush or

surprise on the opposing party because it knew the witnesses’ position, knowledge,

and expertise prior to trial.

In the case before us, Said designated some physicians as “treating

physicians/experts,” but only listed others as “treating physicians.” Despite the

differing designations, allowing these treating physicians to testify as experts would

not have ambushed, surprised, or in any way caught defendants unprepared.

Contrarily, defendants argue that allowing these physicians to testify as experts

would have been cumulative as their testimony was the same as other experts

testifying in the case. Thus, defendants had knowledge of what the treating

physicians’ expert testimony would entail and were prepared for that testimony

given the alleged cumulative nature. These physicians appeared on the witness list,
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were deposed by defendants, and defendants knew the physicians’ positions,

knowledge, and expertise prior to the trial. Given that no manifest injustice would

befall defendants were these treating physicians allowed to testify as experts plus the

mandate that any doubt as to testimony being proper being resolved in favor of

hearing it, we find that the trial court abused its discretion in denying those treating

physicians to testify as experts. Thus, we find the trial court erred in limiting the

testimony of Said’s treating physicians.

However, erroneous exclusion of evidence does not always constitute

reversible error.

Error has been defined as harmless when it is “trivial, formal,
merely academic, and not prejudicial to the substantial rights of the
party assigning it, and where it in no way affects the final outcome of
the case.” 5 Am.Jur.2d, Appeal and Error § 776 (1962) (citing State v.
Britton, 27 Wash.2d 336, 341, 178 P.2d 341, 344 (1947)); Eastburn v.
Ford Motor Co., 471 F.2d 21, 22-23 (5th Cir.1972) (applying Florida
law). By contrast, prejudicial error “affects the final result of the case
and works adversely to a substantial right of the party assigning it.” 5
Am.Jur.2d, Appeal and Error § 776 (1962); see also 5A C.J.S. § 1676
(1958). Moreover, error is prejudicial when it consists of the exclusion
of evidence related to a “material point in issue” and adversely affects
the substantial rights of the party opposed to the exclusion. 5
Am.Jur.2d, Appeal and Error § 776 (1962).

Buckbee v. United Gas Pipe Line Co. Inc., 561 So.2d 76, 85, (La.1990).

Here, while it is possible that the jury could have found the expert testimony

of Said’s local treating physicians more credible than that of his treating physicians

in Washington, D. C., we cannot say that exclusion of the testimony affected the

final result of the case or adversely impacted Said’s substantial rights. Said was able

to present the information and opinions that these local treating physicians were to

give through a different conduit, his Washington, D. C. treating physicians.

Therefore, the jury was aware of the existence of expert medical opinion that Said’s

brain injury was related to the accident and did not find, as fact, that this allegation

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had merit. Accordingly, alone, this error by the trial court limiting the local treating

physician’s testimony does not constitute reversible error.

ASSIGNMENT OF ERROR NUMBER TWO:

Next, Said contends that the trial court abused its discretion, and violated the

collateral source rule, in admitting evidence that he was on disability from the VA.

We find no merit to this contention.

“On appeal, a trial court’s admission or exclusion of evidence is subject to an

abuse of discretion review. ‘The trial court is accorded vast discretion’ concerning

the admission of evidence, and its decision will not be reversed on appeal absent an

abuse of that discretion.” Libersat v. J & K Trucking, Inc., 00-192, p. 11 (La.App. 3

Cir. 10/11/00), 772 So.2d 173, 179, (quoting O’Neill v. Thibodeaux, 97-1065

(La.App. 3 Cir. 3/6/98), 709 So.2d 962) writ denied, 98-0741 (La.5/1/98); 718 So.2d

416, writ denied, 01-458 (La. 4/12/01), 789 So.2d 598.

“Under the collateral source rule, a tortfeasor may not benefit, and an injured

plaintiff’s tort recovery may not be reduced, because of monies received by the

plaintiff from sources independent of the tortfeasor’s procuration or contribution.”

Bozeman v. State, 03-1016, p. 9 (La. 7/2/04), 879 So.2d 692, 698 (quoting La. Dep’t

of Transp. & Dev. v. Kansas City S. Ry., 02-2349 (La.5/20/03), 846 So.2d 734, 739).

“From an evidentiary perspective, the rule bars the introduction of evidence that a

plaintiff has received benefits or payments from a collateral source independent of

the tortfeasor’s procuration or contribution.” Id. at 699. Medical care received from

the Veteran’s Administration (VA) is a collateral source. Id. at 698 (citing Fullilove

v. U.S. Cas. Co. of N.Y., 129 So.2d 816 (La.App. 2 Cir.1961)).

Here, Said asserts the trial court abused its discretion in denying his motion in

limine to exclude his VA disability status as a collateral source. The trial court ruled

that his disability status was admissible, but that all amounts paid by the VA to Said
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were not admissible. Said argues that this finding is in error because the jury’s

knowledge of his disability status with the VA implied that he was already being

compensated and treated for his injuries.

The trial court properly adhered to the collateral source rule by excluding any

evidence regarding the amount received from the VA by Said. Further, we find no

evidence that Said’s status as disabled by the VA was a source tending to reduce his

recovery. Contrarily, evidence that the VA labeled Said as disabled tends to show

that Said was, in fact, injured, an element Said must prove at trial. Said’s status as

disabled in no way tends to prove or disprove that his injury was a result of the

accident, nor does it tend to show the extent of Said’s alleged injury. Therefore, any

prejudice against Said from the jury’s knowledge of his disabled status is minimal

versus the status helping Said prove an element of his case. Accordingly, we find

no abuse of discretion by the trial court in allowing Said’s disability status with the

VA to be admitted at trial.

ASSIGNMENT OF ERROR NUMBER THREE:

Third, Said asserts that the trial court legally erred in issuing erroneous and

conflicting jury instructions on the weight of the testimony of the treating physicians.

This assertion lacks merit.

Generally, a court of appeal reviews a jury’s finding of fact under a manifest

error standard of review. Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d

880 (La.1993). However, “[w]hen a jury is given incorrect instructions in the law,

or when a trial court makes a consequential error in the exclusion of evidence, no

weight should be accorded the judgment of the trial court which implements the jury

verdict.” McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986).

[W]hen a trial court applies incorrect legal principles and these errors
materially affect the outcome of a case and deprive a party of
substantial rights, legal error occurs. Evans v. Lungrin, 97-541, 97-577
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(La. 2/6/98), 708 So.2d 731. “[W]here one or more trial court legal
errors interdict the fact-finding process, the manifest error standard is
no longer applicable, and, if the record is otherwise complete, the
appellate court should make its own independent de novo review of the
record and determine a preponderance of the evidence.” Id. at 735.

Joubert v. Joubert, 19-349, p. 3 (La.App 3 Cir. 11/13/19), 285 So.3d 7, 11.

“An appellate court must exercise great restraint before overturning a jury

verdict on the suggestion that the instructions were so erroneous as to be prejudicial.”

Boutee v. Nissan Motor Corp., 94-1470, p. 9 (La.App. 3 Cir. 9/13/95), 663 So.2d

154, 160 (citing Aetna Life & Cas. Co. v. AMI-Elec. & Hoist Serv., 93-1291 (La.App.

3 Cir. 5/4/94), 637 So.2d 173). “Ultimately, the pertinent inquiry is whether the jury

was misled to such an extent as to be prevented from doing justice.” Iorio v. Grossie,

94-846, p. 3 (La.App. 3 Cir. 10/4/95), 663 So.2d 366, 369.

Here, Said argues that the trial court erred by giving erroneous and conflicting

jury instructions on the weight of treating physician testimony. Near the beginning

of the trial, the court advised the jury that instructions on the law would be given at

the end of the trial and that part of a jury’s duty is to weigh each witnesses’

testimony, whether they are lay person, a doctor that’s a treating physician or an

expert. Later, when giving the jury closing instructions, the trial judge advised the

jury that “in general the observations and opinion of the testimony of a treating

physician are accorded greater weight than that of a physician who has only seen the

party for the purposes of rendering expert opinion concerning the party’s condition.”

When considering the instructions as a whole, we find that the trial court’s

instructions were not so erroneous as to be prejudicial or mislead the jury. While the

trial judge did not initially provide the “greater weight” instruction, it did do so

before the jury retired for deliberations. Doing so provided the jury with the correct

principle of law to apply to the issues presented.

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Further, the jury was not misled by the trial judge’s initial statements on the

weight to give to witnesses. Jurors, as the trier of fact, are required to weigh the

testimony of all witnesses. It is not prejudicial or misleading to inform the jury that

part of its general duty to weigh witness testimony at the outset of the trial. Further,

any confusion that the trial judge’s initial statements may have created would have

been subsequently cured when the more specific “greater weight” directive was

provided in the closing instructions. Consequently, we find no manifest error by the

trial court in providing conflicting or erroneous jury instructions.

ASSIGNMENT OF ERROR NUMBER FOUR:

Finally, Said argues that the jury committed manifest error in failing to award

his full past medical expenses as shown by his medical bills. We find no merit to

this argument.

“An appellate court reviews an award of special damages pursuant to the

manifest error standard of review.” Cormier v. Colston, 05-507, p. 9 (La. App. 3 Cir.

12/30/05), 918 So.2d 541, 547-48. “Medical expenses are a component of special

damages.” Id. “Because the discretion vested in the trier of fact is so great, and even

vast, an appellate court should rarely disturb an award on review.” Guillory v. Lee,

09-75, p. 14 (La. 6/26/09), 16 So.3d 1104, 1117 (citing Youn v. Maritime Overseas

Corp., et al., 623 So.2d 1257 (La.1993)).

“Under Louisiana law, a plaintiff may be awarded past medical expenses

incurred as a result of an injury.” Stiltner v. Nat’l Union Fire Ins. Co., 00-2230 (La.

App. 4 Cir. 10/3/01), 798 So.2d 1132, 1138. The plaintiff bears the burden of proving

special damages by a preponderance of the evidence. Iwamoto v. Wilcox, 04-1592

(La.App. 3 Cir. 4/6/05), 900 So.2d 1047. “[W]hen a plaintiff alleges that he or she

has incurred medical expenses and presents a bill to support that allegation, that

evidence is sufficient to support an award for past medical expenses, unless there is
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sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to

the accident.” Stiltner, 798 So.2d at 1138.

“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.” Menard v. Lafayette Ins. Co., 09-1869, p. 14 (La.

3/16/10), 31 So.3d 996, 1007 citing Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953

So.2d 802; Guillory v. Ins. Co. of North Am., 96-1084 (La.4/8/97), 692 So.2d 1029).

“The issue to be resolved on review is not whether the jury was right or wrong, but

whether the jury’s fact finding conclusion was a reasonable one.” Id.

Said contends that the jury was manifestly erroneous in failing to award him

the entirety of his past medical expenses entered into evidence. Mr. Said submitted

$83,284.00 of medical bills into evidence and alleged that he incurred all of them

due to the accident. The jury awarded Said $12,428.00 for past medical expenses.

Said argues that there is no evidence that he incurred all of the submitted bills

for any reason unrelated to the accident, and, as such, the jury erred in failing to

award him for all of his medical bills. He supports his argument with the recognized

tenet that tortfeasors are required to pay the expenses of over treatment or

unnecessary medical treatment unless the treatment was incurred in bad faith. Jones

v. Progressive Sec. Ins. Co., 16-463 (La.App. 3 Cir. 12/29/16), 209 So.3d 912.

While Said is correct that, absent bad faith, a jury errs if it fails to award the

full amount of medical expenses submitted, the plaintiff must first prove that those

medical bills were incurred as a result of the accident. Said’s argument neglects this

prerequisite and skips to a proclamation that defendants failed to prove bad faith on

his part. Defendants only have this burden when a submitted medical bill was for

treatment of an injury causally connected to the accident.
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Here, the jury’s award of $12,428.00 for medical bills aligns with its award to

Said for personal injury damages. The jury, in performance of its fact finder duty,

seemingly found that Said failed to carry his burden to prove that all his alleged

injuries, most notably his brain injury, were causally connected to the accident.

Thus, the question on review of this assigned error is whether the jury was manifestly

erroneous in reaching this conclusion.

After reviewing the record, we find that the jury had a reasonable factual basis

to find that Said failed to prove that his brain injury was causally connected to the

accident and, as such, to limit Said’s award for medical bills as it did. There is

evidence in the record Said suffered from dizziness and being off-balance on several

occasions prior to the accident. Further, Said was not diagnosed with a traumatic

brain injury until about two years after the accident after first undergoing an MRI

that showed no such injury. Additionally, the jury was presented with conflicting

expert evidence on the causation of of his symptoms. Finally, the jury was aware

that Said, after the accident, exhibited academic prowess in obtaining advanced

college degrees. This evidence sufficiently supports the jury’s findings related to

what injuries were related to the accident, the extent of those injuries, and the amount

it awarded Said in medical bills. Therefore, we find no manifest error in the jury’s

award for medical bills.

CONCLUSION:

Mohab Said raises four assignments of error in this matter against Beauregard

Electric Cooperative and its insurer, Federated Rural Electric Exchange. We find

error by the trial court in disallowing expert testimony from Mohab Said’s local

treating physicians based solely on a differing designation in the pretrial order.

However, we do not find this error, alone, constitutes reversible error. We find no

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merit to Mohab’s remaining three assignments of error. Costs of this appeal are

assessed to Mohab Said.

AFFIRMED.

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