THIBODEAUX, Chief Judge.
Debris from a flipping truck struck the vehicle of an on-duty deputy for the St. Landry Parish Sheriff's Office. The deputy and his wife brought suit against the driver, his employer and its insurer, alleging that the crash caused severe injuries to the deputy's back. At trial, the defendants presented the testimony of Dr. Charles Bain, an alleged biomechanics and causation analysis expert, who testified that the low-impact accident did not cause the deputy's injuries. At the conclusion of the trial, the jury found the defendants liable and awarded the deputy $236,165.00 in past medical expenses, $82,665.00 in past lost wages, $100,000.00 in future medical expenses, and $100,000.00 for pain and suffering. The jury further awarded $3,000.00 in loss of consortium damages to the deputy's wife. The deputy and his wife now appeal the judgment of the trial court, alleging that the court improperly admitted Dr. Bain's testimony as it did not meet the Daubert standards for admissibility. Furthermore, they argue that the jury erred in failing to provide sufficient damage awards for future medical expenses, future lost wages and lost earning capacity, pain and suffering, loss of enjoyment of life, and loss of consortium. For the following reasons, we reverse the judgment of the trial court regarding the admission of Dr. Bain's testimony and amend the jury's quantum award.
We shall consider:
On November 24, 2010, Brian Campbell, an employee of Moody & Price, L.L.C. acting in the course and scope of his employment, was driving northbound on Interstate-49 when he lost control of his truck and flipped, causing the truck to cross the median towards southbound traffic. As a result of the crash, pieces of the headache rack on Mr. Campbell's truck flew off and struck a Chevrolet Tahoe driven by Joshua Godchaux, an on-duty deputy for St. Landry Parish Sheriff's Office. Mr. Godchaux was struck by broken glass in the head and neck, and was taken to the emergency room where he was treated and released.
A week later, Mr. Godchaux visited Dr. Craig Matherne, complaining that he suffered from neck pain and headaches. Then, two weeks after the accident, Mr. Godchaux complained of low-back pain.
After surgery, Mr. Godchaux continued to experience low-back pain. After injections failed to provide relief, he visited Dr. Michael Haydel, who implanted a temporary spinal cord stimulator. When this course of action proved to be effective in alleviating his pain, Dr. Haydel referred Mr. Godchaux to Dr. Alan Appley, who implanted a permanent spinal cord stimulator.
Since he was unable to return to his job as deputy because of his injuries, Mr. Godchaux accepted a lower-paying clerical position at Atchafalaya Measurements in June 2012. The Sheriff's Office offered him a light-duty position in August 2012, but Mr. Godchaux rejected the position.
Mr. Godchaux, and his wife, Anna Godchaux, filed suit against Mr. Campbell, Moody & Price, and its insurer, Peerless Insurance Company, seeking damages for the injuries caused by the auto accident. During discovery, the defendants identified Dr. Charles Bain as an expert witness in biomechanics and injury causation analysis. The plaintiffs filed a motion in limine to exclude Dr. Bain's testimony on the grounds that he did not qualify as an expert and his methods were unreliable. The trial court rejected the motion and allowed Dr. Bain to testify at trial.
Official Comment (d) of La.Code Evid. 702 states that "[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." As such, a trial court's decision to admit or exclude expert testimony is subject to an abuse of discretion standard of review. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); State v. Craig, 95-2499 (La.5/20/97), 699 So.2d 865, cert. denied, 522 U.S. 935, 118 S.Ct. 343, 139 L.Ed.2d 266 (1997). If the appellate court finds that the evidence was improperly admitted, it may conduct a de novo review only if the improperly admitted evidence prevented the jury from making a fair and impartial determination of a disputed fact. See Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230.
Mr. and Mrs. Godchaux argue that the trial court erred in admitting Dr. Bain's testimony since he did not qualify as an expert in biomechanics and causation analysis and his opinions and analytical methods were unreliable. While Dr. Bain likely qualifies as an expert in biomechanics, we agree that his testimony should have been excluded as his methods were unreliable and his testimony does not assist the jury in determining any material facts.
Louisiana Code of Evidence Article 702 states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness
Noting that the Daubert analysis did not directly consider an expert's qualifications, the Louisiana Supreme Court adopted the United States Eleventh Circuit Court of Appeal's three-part inquiry from City of Tuscaloosa v. Harcros Chem., Inc., 158 F.3d 548 (11th Cir.1998), cert. denied, 528 U.S. 812, 120 S.Ct. 309, 145 L.Ed.2d 42 (1999) "to [provide] more comprehensive guidance to district courts determining admissibility of expert testimony[.]" Cheairs, 861 So.2d at 542. Under the Eleventh Circuit's three-prong test, expert testimony is proper only if:
City of Tuscaloosa, 158 F.3d at 562.
Applying the three-prong test, we must first consider whether Dr. Bain is qualified to testify as an expert in biomechanics and causation analysis. Mr. and Mrs. Godchaux argue that Dr. Bain is not a qualified expert in biomechanics and causation analysis since he has not practiced medicine in ten years, has never treated a patient in the United States, is not board certified in neurosurgery or orthopedics, has never taken undergraduate courses in biomechanics or accident reconstruction, and has never conducted on-site accident investigations. In rebuttal, the defendants argue that Dr. Bain is an expert considering he has an undergraduate degree in engineering, is a licensed physician, has completed a three-week program in accident reconstruction, has produced numerous causation reports, and has co-authored numerous papers in biomechanics.
The Louisiana Supreme Court has held that "experience alone is normally sufficient to qualify a witness as an expert[,]" and "the fact that a witness does not have a college degree does not disqualify him from testifying[.]" Cheairs, 861 So.2d at 542 (citing Manchack v. Willamette Industries, Inc., 621 So.2d 649 (La. App. 2 Cir.), writ denied, 629 So.2d 1170 (La.1993)). Notably, this burden is fairly
Here, Dr. Bain possessed experience in the fields of biomechanics and causation analysis, given he was a physician and an engineer, and he participated in an accident reconstruction program. Furthermore, he produced numerous papers on biomechanics and accident reconstruction. While he did not major in biomechanics or become board certified in neurosurgery or orthopedics, the lack of a college degree and certification are not automatic grounds for disqualification. As experience alone is sufficient to qualify a witness as an expert, Dr. Bain satisfies the first-prong of the expert-testimony analysis.
We now must consider whether Dr. Bain's methodology for reaching his conclusions on causation were sufficiently reliable to satisfy a Daubert analysis. Specifically, we must determine whether Dr. Bain's methods were testable, subject to peer review, have a known rate of error, and are generally accepted by the community.
In reaching his opinions regarding causation, Dr. Bain reviewed the accident report, live video of the accident, images from the Tahoe, repair estimates, depositions, and medical records. He also conducted a comparative analysis of force applied to a Lexus automobile in order to determine the level of force in the accident involving the Tahoe. However, he never spoke to Mr. Godchaux, never contacted any of the treating physicians, never visited the scene of the accident, never inspected the Tahoe personally or talked with the damage appraiser, and did not know the body position of the plaintiff at the time of impact. Furthermore, Dr. Bain did not consider the angle of impact or the dimensions of the headache rack in any calculations.
In assessing his methodology, Dr. Bain has not proven that his conclusions are reliable. While our court has held that an expert need not perform an independent investigation of the accident as such determinations focus on credibility of testimony and not admissibility,
Even if Dr. Bain's methodology were reliable, his testimony still should have been excluded as it does not assist the jury in determining a fact in issue. Dr. Bain's testimony involves a discussion of whether the force of impact in this accident could have caused the injury to Mr. Godchaux. Specifically, Dr. Bain testified that the force of impact to the Tahoe, given the little amount of damage to the vehicle, was too slight to cause injuries to Mr. Godchaux's back. However, this court in Davis v. Martel, 00-1727, p. 7 (La.App. 3 Cir. 7/18/01), 790 So.2d 767, 772, writ denied, 01-2399 (La.11/21/01), 801 So.2d 1087, adopted the reasoning of the second circuit in concluding that force-of-impact testimony cannot be used to prove the extent of injuries:
Since our circuit does not accept force-of-impact testimony to prove causation, the majority of Dr. Bain's testimony was prejudicial as it could lead the jury to reach improper conclusions of fact.
As Dr. Bain's testimony was used for purposes of deciding the essential issue of causation, we conclude that its admission potentially prejudiced the jury leading to an inconsistent jury award, and thus, de novo review is warranted. See Brewer, 35 So.3d 230. Considering the evidence in the record without Dr. Bain's testimony, there is no dispute that Mr. Campbell was negligent in driving his truck which led to the accident with Mr. Godchaux. The only real question is whether the accident caused Mr. Godchaux's back injuries. We believe it did. While the defendants have pointed to medical records indicating that Mr. Godchaux suffered from pre-existing back pain, this pain did not necessitate multiple surgeries and the inability to work as a deputy police officer. It was only after the accident that significant medical treatment was needed, which indicates that the accident at the very least aggravated the injury. Moreover, the doctors who cared for Mr. Godchaux all testified that this accident likely caused the injuries. As such, we find the defendants liable on the merits.
Mr. Godchaux alleges that the jury erred in failing to award any damages for future lost wages and earning capacity. We disagree. Our court in Batiste v. New Hampshire, 94-1467, pp. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ denied, 95-1413 (La.9/22/95), 660 So.2d 472, has provided guidance on assessing this area of quantum:
Here, Mr. Godchaux argues that his future earning capacity was diminished as he was forced to take a clerical position at Atchafalaya Measurements which paid less than the St. Landry Parish Sheriff's office. However, this argument fails to consider that Mr. Godchaux turned down a light-duty position in the Sheriff's office that carried with it the possibility for advancement. Furthermore, in regards to his position at Atchafalaya Measurements, Mr. Godchaux testified that he felt he could occupy the role of manager tomorrow. While neither of these situations amount to certainties, the fact that there is a potential to earn as much income as he did prior to the accident indicates that there is no lost earning capacity. As such, Mr. Godchaux is not entitled to an award for future lost wages
Mr. Godchaux contends that the jury erred in only awarding $100,000.00 in future medical expenses. We agree. Awards for future medical expenses constitute special damages which can be established with some degree of mathematical certainty. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La.2/18/05), 896 So.2d 31. At trial, Dr. Haydel testified that Mr. Godchaux would need to attend doctor visits for his injuries every two to three months which would amount to a cost of $600.00 to $900.00 per year. Mr. Godchaux also presented evidence that for every $1,000.00 of annual costs, the lifetime future expenses would amount to $72,569.00. The defendants have presented no evidence to contradict these values. As $600.00 is 60% of $1,000.00, we reason that Mr. Godchaux's future medical expenses for doctor visits would be at least 60% of $72,569.00, which is $43,541.00. In addition, Mr. Godchaux presented uncontradicted evidence that the lifetime cost of spinal stimulator replacements would amount to $199,292.00. Given these values, we find that Mr. Godchaux's award for future medical expenses should be increased from $100,000.00 to $242,833.00.
Mr. Godchaux argues that the jury erred in failing to award any damages for loss of enjoyment of life and in awarding only $100,000.00 for pain and suffering. We agree.
Loss of enjoyment of life is a component of general damages that compensates for "detrimental alterations of a person's life or lifestyle or a person's inability to participate in the activities or pleasures of life that were formally enjoyed." McGee v. A C and S, Inc., 05-1036 (La.7/10/06), 933 So.2d 770. Here, it is clear that Mr. Godchaux has suffered detrimental alterations to his lifestyle as a result of his injuries. He suffers from continued pain, fatigue, and can no longer participate in many social activities he loves, such as hunting and fishing. Furthermore, his marriage and sex life have
As for pain and suffering awards, "a court must consider the severity and duration of the injured party's pain and suffering" in making its assessment. For example, in Melancon v. Lafayette Ins. Co., 05-762 (La.App. 3 Cir. 3/29/06), 926 So.2d 693, writ denied, 06-974 (La.6/16/06), 929 So.2d 1291, this court upheld a general damages award of $550,000.00 for a patient who suffered a disc injury requiring a laminectomy. That patient suffered permanent nerve damage, sexual dysfunction, depression, and continued neuropathic pain down his right leg. Although recommended, that patient also had not received a spinal stimulator to relieve the pain. While Mr. Godchaux's injuries are certainly similar to those suffered by the patient in Melancon given the numerous surgeries (including a laminectomy) and the continued chronic pain, they were not as severe as Mr. Godchaux did not suffer from sexual dysfunction or neuropathic pain or any diagnosed depression. In addition, Mr. Godchaux's pain has been relieved to a certain extent given the spinal stimulator. Still, we feel an award of only $100,000.00 is inadequate given the duration and scope of Mr. Godchaux's pain. We, therefore, increase his award for pain and suffering to $150,000.00.
Mrs. Godchaux argues that the jury erred in only awarding $3,000.00 for loss of consortium. Again, we agree. Our court has previously reasoned that "[l]oss of consortium is more than just a loss of general overall happiness, it also includes love and affection, society and companionship, sexual relations, the right of performance of material services, the right of support, aid, and assistance, and felicity." Bellard v. S. Cent. Bell Tel. Co., 96-1426, p. 21 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 707 (citations omitted), writ denied, 97-2415 (La.12/12/97), 704 So.2d 1202. Here, Mrs. Godchaux has suffered greatly as a result of Mr. Godchaux's injury, as her sex life is virtually nonexistent, she sleeps in a separate bed, Mr. Godchaux cannot help with daily chores, and he is withdrawn and depressed. Consequently, we find that the loss of consortium award should be increased to $20,000.00.
For the foregoing reasons, we reverse the trial court's admission of Dr. Bain's testimony into evidence as Dr. Bain's testimony was not scientifically valid and was unreliable. We further amend the quantum award by increasing the award for future medical expenses to $242,833.00, increasing the award for pain and suffering to $150,000.00, increasing the award for loss of enjoyment of life to $50,000.00, and increasing the award for loss of consortium to $20,000.00. Costs of this appeal are assessed against the defendants.
GREMILLION, J., concurs in part, dissents in part, and assigns written reasons.
CONERY, J., concurs in part, dissents in part, and assigns reasons.
I agree with the majority's ultimate holding that the testimony of Dr. Bain should have been excluded. I would exclude his testimony based on a finding that the defendants have not established that there is an accepted field of expertise in "causation analysis." While Dr. Bain may have been qualified as an expert in "biomechanics" and "accident reconstruction," the record before us does not support that he performed any tests, examined the specific vehicles, or performed or reviewed any "crash tests" specific to this case. I agree that Dr. Bain's opinion should have been excluded on that basis.
I disagree with the majority's analysis that the exclusion of Dr. Bain's testimony required a de novo review of the jury verdict. I do not find that "the improperly admitted evidence prevented the jury from making a fair and impartial determination of a disputed fact." See Brewer v. J.B. Hunt Transport, Inc., 09-1408 (La.3/16/10), 35 So.3d 230.
The major thrust of Dr. Bain's testimony was that the impact was so slight that it could not have caused injury to Mr. Godchaux's lumbar spine. The dash cam video on Mr. Godchaux's vehicle was reviewed by the jury, thus enabling the jury to see the relatively minor nature of this "collision." Evidence as to minimal property damage further supports the conclusion that this was a minor impact collision. The jury heard medical evidence that the collision aggravated a pre-existing back condition. The jury award reflects that the jury discredited Dr. Bain's testimony, as the jury did award all the past medical expenses totaling $236,150.00 for the plaintiff's lumbar surgery and treatment. The jury also awarded $100,000.00 in future medical expenses, $82,665.00 in past lost wages, $100,000.00 in pain and suffering, and $3,000.00 in loss of consortium to Mrs. Godchaux, for a total amount of $521,830.00 in damages. The jury award, in my view, was quite generous for aggravation of a pre-existing back condition from a minor impact collision, especially where the record demonstrates credibility problems with the plaintiff's testimony.
There was ample evidence in the record that plaintiff had failed to report a long history of prior back complaints to his medical providers. The dash cam video shows no significant displacement of Mr. Godchaux's vehicle. Mr. Godchaux was easily able to pull to the side of the road without further incident.
Mr. Godchaux's trial testimony that he ducked and bent his torso to the right was impeached by his deposition testimony that he blacked out and couldn't remember what happened to him. He first reported to his doctors that he was "in a head on collision," implying a far more serious event than that "caught on tape."
At trial, Mr. Godchaux claimed that his primary injury was to his lumbar spine, yet he did not complain of low back pain when he visited the emergency room or to various physicians he consulted during the two week period following the accident.
Dr. Brennan was first consulted for complaints of low back pain on December 20, 2010, nearly one month after the accident. Mr. Godchaux did not inform Dr. Brennan of his long history of low back complaints.
At trial, the jury heard evidence and testimony that Mr. Godchaux suffered from low back pain for many years and had documented complaints of low back pain as late as two weeks before the accident in 2010. He was treated for low back pain in 2008, and in 2009, he was treated for low back pain that radiated into his right leg, the same complaints he gave to
The majority's decision to substitute its judgment for that of the jury and award money for specific elements of damages that the jury refused to award, increase specific damage awards and affirm other specific awards made by the jury clearly exemplifies why courts of appeal should not attempt to micromanage jury verdicts. The jury heard all the evidence, and, based on the record, could just as easily have found that Mr. Godchaux's pre-existing low back injury was not aggravated to the extent that the accident caused his surgical treatment or loss of earnings and other damages. Instead, it awarded all of his past medical expenses, $100,000.00 for future medical expenses, $100,000.00 in general damages, all of his past loss of earnings, as well as $3,000.00 for Mrs. Godchaux's loss of consortium. The majority increased the damages by $259,833.00 for a total damage award of $781,663.00.
In light of the minor nature of this collision and the impeachment of Mr. Godchaux before the jury, I find that the jury's award, though generous, is not an abuse of its vast discretion. Damage awards are factual findings by a jury. Under the facts and circumstances of this case, great deference must be given to the jury's factual findings. See Guillory v. Saucier, 11-745 (La.App. 3 Cir. 12/7/11), 79 So.3d 1188, writ denied, 12-75 (La.3/9/12), 84 So.3d 554, and writ denied, 12-81 (La.3/9/12), 84 So.3d 555. I would affirm the jury's award in its entirety.
GREMILLION, J., concurs in part and dissents in part.
The first major question that the majority needed to answer was whether the jury should have heard the testimony of Dr. Charles Bane. I agree with my colleagues; they should not have heard it.
Secondly, I break with my fellow dissenter, Judge Conery, and agree with the majority, that Dr. Bane's testimony prevented the jury from making a fair and impartial determination. Thus, the majority has correctly concluded that a de novo review is necessary.
Finally, I agree with the conclusions of the majority's de novo review of liability. The subject accident did cause injury resulting in damages to Mr. Godchaux.
I turn from the majority de novo's review of liability to its de novo review of damages. The majority reviewed both the special damages awarded by the jury (those damages susceptible to exact mathematical calculation), as well as the general damages (those damages not susceptible to exact mathematical calculation).
With regard to the special damages, I agree with the majority. Mr. Godchaux simply did not prove entitlement to either future lost wages or lost earning capacity. Furthermore, with regard to future medical expenses, I think the majority's $142,833.00 increase to the jury's award is extremely generous. Nevertheless, it does represent a fair and reasonable review of the record.
I disagree, however, with the manner in which the majority exploded the general damages. I, therefore, dissent.
My review of the record suggests that the jury was wise and certain when it awarded $100,000.00 in general damages. In fact, I agree with Judge Conery on this point. The jury's award was "generous."
The fact that a verdict form has multiple blanks all purporting to award general damages, does not require a jury to multiply its intended award exponentially just to avoid leaving a few blanks.
In this case, the jury was sympathetic to the plaintiff in some areas, but was skeptical in others. That is what juries do, and that is what we want them to do. However, the majority's review of this record completely excludes all possibility of skepticism. In fact, it removes the need for a jury altogether. It replaces the jury with a calculator.
My de novo review establishes that $100,000.00 for all general damages was appropriate. Likewise, it establishes that the $3,000.00 for loss of consortium was appropriate. I would increase the plaintiff's recovery in the area of future medicals from $100,000.00 to $242,833.00, as did the majority. In all other respects, I would affirm the jury's various awards, and leave them unchanged.
Thus, I concur in part and dissent in part.
