Copell v. Arceneaux Ford, Inc.

• Decision Date: 09 June 2021
• Docket Number: 20-299
• Citation: 322 So.3d 886
• Parties: Shawn COPELL v. ARCENEAUX FORD, INC., et al.
• Court: Court of Appeal of Louisiana — District of US

322 So.3d 886

Shawn COPELL

v.ARCENEAUX FORD, INC., et al.

20-299

Court of Appeal of Louisiana, Third Circuit.

6-09-2021

Robert M. Brandt, Charles Brandt, Kyle Sherman, Kenny M. Habetz, Jr., 111 Mercury Street, Lafayette, LA 70503, (337) 800-4000, COUNSEL FOR PLAINTIFF/APPELLANT: Shawn Copell

Lance Williams, McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch, 195 Greenbrier Blvd., Suite 200, Covington, LA 70433 (504) 831-0946 COUNSEL FOR DEFENDANTS/APPELLEES: Arceneaux Ford, Inc, et al.

Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles G. Fitzgerald, Judges.

COOKS, Chief Judge.

This appeal arose from a jury verdict on a claim for personal injuries suffered by Plaintiff, Shawn Copell, through the negligence of Defendant, Arceneaux Ford.

FACTS AND PROCEDURAL HISTORY

On September 4, 2015, Plaintiff, Shawn Copell, brought his Ford F-150 truck to Arceneaux Ford for an oil change and tire rotation. After the services were completed, Mr. Copell left with his truck. He then drove approximately three miles, when he began to notice the truck "bucking" and "swaying." Mr. Copell then attempted to pull off the road into a private drive when the truck came to a sudden stop. Mr. Copell stated he was suddenly and severely jarred forward when the vehicle abruptly stopped. It was acknowledged by Arceneaux Ford that the service technician failed to tighten the lug nuts on the driver's side rear tire, which caused the tire to dislodge from Mr. Copell's truck.

Mr. Copell immediately called Arceneaux Ford, which towed the truck back to the dealership along with Mr. Copell. He was provided a rental car by the dealership and told his truck would be repaired. He acknowledged he did go back to work that day, but after feeling discomfort in his neck and experiencing a severe headache, his supervisor sent him home. According to Mr. Copell and his wife, Brandi, his symptoms worsened through the course of the night and he sought medical attention the following day. Since it was a Saturday, Mr. Copell went to the Urgent Care clinic, where x-rays were taken and he was given two injections for pain and spasms.

After continuing to experience pain over the next few days, Mr. Copell began treating with Dr. Sai Chennamsetty, a general practitioner. After months of conservative treatment with no significant improvement, Dr. Chennamsetty ordered a MRI. After reviewing the results, he was referred to Dr. William Brennan, a neurosurgeon.

Dr. Brennan informed Mr. Copell he was suffering from a disc bulge with narrowing of the neural foramen at the C5-6 level. After two courses of physical therapy, home exercises and use of a traction kit failed to provide significant relief, Dr. Brennan advised Mr. Copell surgery was his only viable option. On November 16, 2016, Mr. Copell underwent an anterior cervical discectomy and fusion surgery at the C5-6 level.

Prior to the surgery, on August 4, 2016, Mr. Copell filed a Petition for Damages against Defendants, Arceneaux Ford, and its liability insurer, Amtrust North America, Inc., seeking "fair and just compensation from the Defendants in a reasonable amount that will satisfy Petitioner's demands for all damages."

Following the November 16, 2016, surgical procedure, Defendants requested an independent medical examiner, Dr. Henry Eiserloh, examine Mr. Copell and review all his medical records. Dr. Eiserloh testified he saw no neurological defects in Mr. Copell's neck and questioned the necessity of the surgical procedure. Dr. Brennan countered that, in his opinion, the surgery was mandated because there was disc material from a herniated disc that was extending into the foramen and hitting a nerve, causing significant pain to Mr. Copell. Dr. Eiserloh also questioned the choice to perform an anterior cervical discectomy, opining that an artificial cervical replacement surgery was a better option and would have significantly lessened the likelihood of a second surgery. Dr. Eiserloh did agree with Dr. Brennan that a second surgery would likely be required in the future.

On September 23, 2019, the matter proceeded to trial before a jury. Both sides presented expert testimony as to the likelihood the incident caused Mr. Copell's injuries, as well as expert medical testimony as to the degree and severity of the injuries. Mr. Copell requested the trial court instruct the jury on the presumption of causation set forth in Housley v. Cerise , 579 So.2d 973 (La.1991). Defendants objected to the inclusion of the Housley presumption. The trial court overruled Defendants’ objection. After a several day trial, the jury returned a verdict awarding Mr. Copell $16,000.00 in general damages, $104,000.00 in past medical expenses and $95,000.00 in future medical expenses. Mr. Copell appeals the jury verdict, asserting the following assignments of error:

1. The jury's award of $16,000.00 for past and future pain and suffering is abusively low.

2. The jury erred in failing to award Mr. Copell mental pain and suffering past and future.

3. The jury erred in not awarding Mr. Copell loss of enjoyment of life and disability and loss of function.

4. The jury erred in failing to award all future medical expenses.

Defendants answered Mr. Copell's appeal, and asserted the following assignments of error:

1. The trial court erred in denying Defendants’ motion in limine and overruling Defendants’ objection at trial to the testimony of Dr. Barczyk, Mr. Copell's expert.

2. The trial court erred in overruling Defendants’ objection to Mr. Copell's requested jury charge on the Housley presumption.

3. The jury erred in awarding Mr. Copell general and special damages based on the Housley presumption for this very minor incident, which could not have caused the alleged injuries.

4. Alternatively, the jury erred in awarding $104,000.00 in past medical expenses and $95,000.00 in future medicals based on the Housley presumption, as the evidence does not support those awards.

ANALYSIS

We will first examine Defendants’ assignments of error, as much of the argument it puts forward also relates to Mr. Copell's arguments on appeal.

I. Daubert Challenge.

In its first assignment of error, Defendants argue that the trial court erred in denying its motion to exclude the testimony of Mr. Copell's witness, Dr. David Barczyk, a chiropractor. Defendants argued Dr. Barczyk was "not a qualified biomechanical engineer" and the trial court failed to adhere to the Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and State v. Foret , 628 So.2d 1116 (La.1993) gate-keeping function. Mr. Copell asserts that the trial court's admission of Dr. Barczyk's testimony as an expert was proper under Daubert / Foret and La.Code Evid. art. 702.

The trial court denied Defendants’ motion to exclude and allowed Dr. Barczyk to testify as an expert in biomechanics as it relates to chiropractic treatment. Pertinent to this decision, La.Code Evid. art. 702 provides:

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.

The comments to article 702 and the jurisprudence establish that the trial court has great discretion in determining who should be allowed to testify as an expert, and the trial court's decision should not be reversed on appeal absent clear error. Mistich v. Volkswagen of Germany, Inc. , 95-939 (La. 1/29/96), 666 So.2d 1073, on rehearing on other grounds , 95-939 (La. 11/25/96), 682 So.2d 239 ; Taylor v. Progressive Sec. Ins. Co. , 09-791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied , 10-1024 (La. 9/17/10), 45 So.3d 1044 ; Cleland v. City of Lake Charles , 01-1463, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied , 03-1380, 03-1385 (La. 9/19/03), 853 So.2d 644, 645. Thus, we can only reverse the trial court's decision to accept an expert's opinion if we find that conclusion to be clearly wrong. We find no merit in Defendants’ challenge as to Dr. Barczyk's qualifications. Dr. Barczyk has been a state-licensed chiropractor for over twenty years. He served as the President of the Chiropractic Association of Louisiana and was appointed to serve on the Louisiana Board of Chiropractic Examiners. He also testified as to his extensive post-graduate training in biomechanics and occupant kinematics relating to motor vehicle trauma. He has attended crash courses conducted by the Spine Research Institute of San Diego in conjunction with the Texas A & M University biomechanics department. In 2016, Dr. Barczyk was certified from the Accreditation Commission for Traffic Accident Reconstruction (ACTAR).

Mr. Copell notes that since his ACTAR qualification Dr. Barczyk has been accepted in ten trials as an expert in the field of injury biomechanics. This court in Taylor , 33 So.3d 1081, 1086, as in this case, was tasked with a challenge as to the trial court's decision to allow this same expert, Dr. Barczyk "to testify regarding the biomechanics of low-speed crashes." After examining Dr. Barczyk's qualifications, this court agreed that he was qualified to testify as an expert regarding biomechanics of the spine. We reach the same decision in this case.

Defendants also argued that Dr. Barczyk's opinions should be excluded because they were formulated by relying solely on the facts as testified to by Mr. Copell. As a general rule, the factual basis of an expert's opinion goes to the credibility of the testimony, not its admissibility, and it is up to the opposing party to examine the factual basis of the expert's opinion in cross-examination. La.Code Evid. art....