Gagnard v. Zurich Amer. Ins. Co.

• Decision Date: 12 June 2002
• Docket Number: No. 02-19.,02-19.
• Citation: 819 So.2d 489
• Parties: Earl GAGNARD v. ZURICH AMERICAN INSURANCE CO./ASSURANCE COMPANY OF AMERICA and Betty Baudin.
• Court: Court of Appeal of Louisiana — District of US

819 So.2d 489

Earl GAGNARD v. ZURICH AMERICAN INSURANCE CO./ASSURANCE COMPANY OF AMERICA and Betty Baudin.

No. 02-19.

Court of Appeal of Louisiana, Third Circuit.

June 12, 2002.

Paul Boudreaux, Jr., Stacy C. Auzenne, Keiser, Auzenne & Boudreaux, L.L.C., Alexandria, LA, for Defendants/Appellants: Zurich American Insurance Co./Assurance Company of America and Betty Baudin.

John T. Bennett, Marksville, LA, for Plaintiff/Appellee: Earl Gagnard.

Court composed of NED E. DOUCET, JR., C.J., ULYSSES GENE THIBODEAUX and SYLVIA R. COOKS, Judges.

THIBODEAUX, Judge.

Plaintiff, Earl Gagnard, was involved in an automobile accident with defendant, Betty Baudin, the insured of co-defendant, Zurich American Insurance Company/Assurance Company of America. After Mr. Gagnard was discharged from treatment of accident injuries by Dr. Darron McCann, he slipped and fell at his home. Subsequent medical treatment was found to have stemmed from the original automobile accident and not from the fall. The trial judge found Ms. Baudin completely at fault, and defendants do not appeal such finding. Their appeal is grounded in Mr. Gagnard's receipt of general damages and medical expenses (both past and future) and in the propriety of the testimony of plaintiff's treating physicians, Drs. Bryan and Darron McCann.

We affirm.

I. ISSUES

We shall consider whether:

(1) the trial court committed manifest error in considering and relying upon the opinion testimony of Drs. McCann and McCann, who were not formally "tendered" as experts to the court, and one of whom testified from the medical reports of the other;

(2) the trial court committed manifest error in awarding sums for future medical expenses; and,

(3) plaintiff is entitled to damages for frivolous appeal.

II. FACTS AND PROCEDURAL HISTORY

On August 18, 2000, Mr. Gagnard was northbound in his automobile on Washington Street in Marksville, Louisiana. A southbound vehicle, operated by Ms. Baudin, made a left turn from Washington Street onto Tunica Drive. In so doing, Ms. Baudin's vehicle entered the path of Mr. Gagnard's vehicle, causing an accident.

Mr. Gagnard filed suit against Ms. Baudin and her insurer, Zurich American Insurance Company/Assurance Company of America (hereinafter "Assurance") on November 15, 2000. Shortly after the accident, Mr. Gagnard began treatment with Dr. Darron McCann (hereinafter "McCann, Jr."). Mr. Gagnard was discharged from treatment on March 16, 2001. Later, sometime in July 2001, Mr. Gagnard slipped and fell at his home, striking his head and injuring his neck. Treatment with Dr. McCann, Jr. resumed on June 4, 2001, and continued until August 13, 2001. On August 16, 2001, Mr. Gagnard decided to visit Dr. Bryan McCann (hereinafter "McCann, Sr."), father of Dr. McCann, Jr. Dr. McCann Sr. was treating Mr. Gagnard at the time of trial. Both doctors' expert testimony was offered.

The final judgment assigned 100% of the fault to Ms. Baudin, and awarded Mr. Gagnard $49,890.32 ($30,000 in general damages, $7,890.32 for past medial expenses, and $12,000 for future medical expenses), together with legal interest thereon from the date of judicial demand until paid, and all costs, including the deposition fees of both doctors, Dr. McCann, Sr.'s trial appearance fee, and both doctors' deposition transcription fee. Ms. Baudin and Assurance appeal the award of damages as well as the propriety of the doctors' testimony, but do not challenge Ms. Baudin's liability. Plaintiff asks for frivolous appeal damages.

III.

LAW AND DISCUSSION

Testimony of Drs. McCann and McCann

Dr. McCann, Jr. began treating Mr. Gagnard shortly after the August 2000 accident, up until March 16, 2001. After the slip and fall, treatment with Dr. McCann, Jr. resumed on June 4, 2001, and continued until August 13, 2001. Three days later, Mr. Gagnard decided to visit Dr. McCann, Sr. Both doctors' expert testimony was offered at trial on behalf of the plaintiff—both of their depositions were offered, and Dr. McCann, Sr. testified in person.

Defense counsel argues first, that neither doctor was properly "tendered" for cross-examination as to their expert qualifications or to the trial court for acceptance or rejection as expert witnesses. Assurance contends the alleged failure to "tender" had a bearing upon the nature of their testimony. Defense counsel also argues that because Dr. McCann, Sr. did not personally treat the plaintiff until August 16, 2001, he should not have been allowed to testify to Dr. McCann, Jr.'s treatment records prior to that date. Moreover, defense counsel asserts that it should have been allowed to probe his credentials and qualifications, which was allegedly prohibited, since neither doctor was "tendered" as an expert. The defense urges us, therefore, to reverse those portions of the trial court's decision based upon the "expert" testimony.

For its position, the defense cites State v. Martin, 543 So.2d 1020 (La.App. 3 Cir.), writ denied, 550 So.2d 625 (La.1989), where the defendant claimed trial court error for allowance of expert testimony from a witness who had not been qualified or offered as an expert. The court said that any witness must be qualified by the trial court before he may offer testimony as an expert, but ultimately determined that this particular witness in question possessed sufficient education and experience to have testified as such. Martin relied upon State v. Clark, 340 So.2d 208 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (1977), toward which the defense also directs our attention. In explaining that a witness must be qualified before giving an expert opinion, Clark cites the text of former La.R.S. 15:466, which read: "The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court." The statute was repealed effective January 1, 1989 by the enactment of the Louisiana Code of Evidence.

In our estimation, the nearest corollary of La.R.S. 15:466 in the present Code of Evidence is Article 702, which currently reads: "If 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 qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." The defendants argue that for purposes of Article 702, Clark requires that a formal tender of the expert must be made, and a traverse of that expert must be permitted by opposing counsel. We disagree.

State v. Billiot, 942419 (La.App. 1 Cir. 4/4/96); 672 So.2d 361, writ denied, 96-1149 (La.10/11/96); 680 So.2d 655 stresses that former La.R.S. 15:466 entrusted to the discretion of the trial court the determination of whether to accept a witness as an expert. Absent an abuse of that discretion, the trial court's determination would maintain. Billiot explains that the adoption of the Code of Evidence has not changed this particular area of evidence law, and the trial court still retains its broad discretion. Comment (d) to La.Code Evid. art. 702 supports this interpretation. But even if the thrust of the law remains the same and, as per Martin and Clark, an expert must be qualified by the trial court, that does not mean that a formal tender must be made. In a recent case from this circuit, we were faced with an argument strikingly similar to that of defense counsel here. In Darbonne v. Wal-Mart Stores, Inc., 00-551 (La.App. 3 Cir. 11/14/00); 774 So.2d 1022, the defendant argued that prior to plaintiff's expert witness' testimony, the trial judge failed to conduct the necessary inquiry into his qualifications and expertise. The defendant also argued that the witness' qualifications were not formally tendered to the court. We stated that

although the case law does call upon the trial court to exercise discretion in deciding whether or not to allow the expert witness to testify, the law does not specify the manner in which the trial judge is to do so. The defendant cites no law, either statutory or judicial, which would require a particular type of inquiry into the qualifications of an expert witness prior to his acceptance by the court. Instead it is only incumbent upon the trial judge to consider certain factors, either expressly or privately, before deciding whether to accept an individual as an expert. Therefore, there was no error in the court's inquiry into Mr. Nelson's qualifications.

The defendant further argues that because the court did not conduct a sufficient inquiry into Mr. Nelson's background and expertise, it wrongly qualified him. The law is well settled that trial courts have broad discretion in determining how much and what kind of education and/or training adequately qualify an individual as an expert. For example, formal education or training in a particular field is not always necessary to qualify as an expert in a particular field.

Id. at 1027(citations omitted) (emphasis added).

In the trial judge's oral reasons, he stated that he had "on numerous occasions, recognized Dr. McCann[. Sr.] as an expert in the field of Family Practice. And I place great weight and confidence in the testimony, that Dr. Bryan McCann has offered to this court in this case." In addressing defendants' objections to Dr. McCann, Sr.'s testimony from his son's treatment records, the trial judge said that "[i]t is very permissible in a court of law, for an expert to review another expert's records; and to give expert opinion concerning what one expert has placed of record, comment upon the conclusions, and records of another expert." This statement is important in that it proves that the trial judge considered both doctors to be experts, and such consideration was not an abuse of discretion.

It is of no moment that...