Jones v. Progressive Sec. Ins. Co.

• Decision Date: 29 December 2016
• Docket Number: 16–463
• Citation: 209 So.3d 912
• Parties: Jasmine JONES v. PROGRESSIVE SECURITY INSURANCE CO., et al.
• Court: Court of Appeal of Louisiana — District of US

209 So.3d 912

Jasmine JONES

v.PROGRESSIVE SECURITY INSURANCE CO., et al.

16–463

Court of Appeal of Louisiana, Third Circuit.

OPINIONS RENDERED December 29, 2016

Philip G. Hunter, Hunter & Beck, 1916 Gus Kaplan Drive, Alexandria, LA 71301, (318) 487–1997, ATTORNEY FOR PLAINTIFF/APPELLANT: Jasmine Jones

Ryan M. Malone, Duplass, Zwain, Bourgeois, Pfister & Weinstock, Three Lakeway Center, Suite 2900, 3838 North Causeway Boulevard, Metairie, LA 70002, (504) 832–3700, ATTORNEY FOR DEFENDANTS/APPELLEES: Volvo Construction Equipment Rents, Inc., Liberty Mutual Fire Insurance Company and Keith Morgan.

Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion Judges.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

In this automobile accident case Defendants admit liability. Jasmine Jones (Jones) and Keith Morgan (Morgan) were stopped at a traffic light waiting for the light to switch to green. Morgan was driving a Ford F–150 pickup truck, sitting in the right lane of travel, and Jones was driving a Honda automobile, sitting in the left lane of travel. When the light changed from red to green both vehicles proceeded. Jones headed straight through the intersection in the left lane of travel but Morgan tried to make a left turn from his lane and struck Jones' vehicle on the right front tire. Jones' vehicle suffered minor damage. She sought medical attention at Rapides Regional Hospital emergency room the same day with a complaint of back pain. Jones saw Dr. Gerald LeGlue (Dr. LeGlue) as her initial treating physician who later referred her to Dr. George Williams (Dr. Williams). Dr. Williams is a board certified orthopedic surgeon who has qualified as an expert witness in his field of medicine many times in various courts.

Jones experienced severe pain, a nine on a scale of one to ten, for many months. She was still experiencing pain at the time of trial two years post-accident. During the first four months post-accident Jones visited Dr. LeGlue thirteen times. She was treated for pain with medication, physical therapy and acupuncture. Jones missed four days of work due to her injury, but waives her loss wage claim. As a young single mother of two small children Jones works and attends nursing school. Dr. LeGlue eventually felt it necessary to order an MRI and refer Jones to Dr. Williams because Jones was not improving and was not getting relief from treatment. After studying the MRI and Jones' record from Dr. LeGlue, Dr. Williams recommended an epidural steroid spinal injection for which he referred Jones to Dr. Melanie Firmin (Dr. Firmin). According to Jones the steroid injection did not provide any relief but only resulted in aggravating her back pain. Jones began experiencing radicular pain down her right leg and later in both legs. Dr. Williams diagnosed radiculopathy which he opined was the result of her injuries in this accident. He based this opinion on his clinical observations from a mechanical standpoint and on his theory that the cause of her radicular pain was chemical, despite there being no tear in the bulging disc visible on the MRI. He explained that there must be a tear in the disc for leakage to be the cause of radicular pain and that even though the tear is not visible on an MRI it may still be present. He knew of four diagnostic tests which could confirm his theory but explained the reason he thought these tests ill-advised for so young a patient as Jones. He eventually recommended surgery as the only medical remedy for Jones' persistent pain. After considering all factors concerning such a surgery Jones opted not to have surgery.

Defendants filed a pre-trial motion for a Daubert¹ hearing attempting to limit Dr. Williams' testimony so as to prohibit him from testifying as an expert on the subject of differential diagnosis of radiculopathy. Following what the trial judge styled a Daubert hearing the trial court ruled all of Dr. Williams' testimony inadmissible. Jones objected to the court's ruling, but the objection was overruled. Jones proffered the deposition of Dr. Williams and it is contained in the record. The trial court rendered judgment in favor of Jones and awarded her special damages in the amount of $5,822.16 and general damages of $5,000.00. The trial judge based its award of special damages on its finding that Jones' attorney negotiated reduction of medical costs inures to Defendant's benefit as the collateral source rule is not applicable to such reductions. The trial court made no mention of assessing costs to either party and did not issue any oral or written reasons for its judgment.

Jones appeals the judgment asserting five assignments of error attacking the court's refusal to apply the collateral source rule to Jones' medical costs, exclusion of all of Dr. Williams' testimony, exclusion of Dr. LeGlue's testimony regarding chemical radiculopathy, the trial court's failure to assess costs against Defendants, and seeking an increase in damages. Jones sets forth her assignments of error as follows:

[Assignment of Error No.] 1: The trial court erred in granting defendant's Daubert motion and excluding, entirely, the testimony of Dr. George Ray Williams, a board certified and fellowship trained treating orthopedic spine surgeon practicing in Opelousas;

[Assignment of Error No]. 2: The trial court erred in excluding a portion of the testimony of plaintiff's principal treating physician, Dr. Gerald LeGlue of Alexandria;

[Assignment of Error No.] 3: The trial court erred in awarding the plaintiff only $5,000 in general damages in this case where the plaintiff suffered injuries for which she actively treated for thirty-one months and incurred medical bills of approximately $15,000;

[Assignment of Error No.] 4: The trial court erred in failing to cast costs against the defendant, including clerk's ledger costs, expert witness fees, and costs of medical records, and other taxable costs; and

[Assignment of Error No.] 5: The trial court erred in in this bench trial by applying an inappropriately stringent standard to medical testimony and opinion where she, rather than a jury, should have considered all testimony of the two treating physicians. In other words, the trial court overzealously performed a gatekeeping function in a bench trial, thus denying itself factual, diagnostic and causation testimony to support a reasonable award of damages.

Legal Analysis

Following argument of counsel the trial court made its ruling in open court granting Defendants' motion to exclude testimony of Dr. Williams ordering that all of Dr. Williams' testimony be excluded. The court explained its ruling as follows:

With the Daubert motion, we know that it's all the, the basis of this motion is all about methodology. And an expert can have an opinion, and we see experts have different opinions all the time. But, in order for an expert's opinion to be reliable, the basis of his opinion has to be reliable, and the foundation of his opinion has to be reliable.

Without—the Court is of the opinion that this evidence will be excluded, because there is no medical evidence that he relies on to form this opinion. And so therefore, the Court is of the opinion that the basis of his opinion is not reliable; so, therefore, his opinion would not be reliable.

....

By Mr. Hunter: Now just for the record, Your Honor, are you excluding his entire deposition testimony.

By The Court: Yes.

There is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play.MSOF Corp. v. Exxon Corp., 04–0988 (La.App. 1st Cir.12/22/05), 934 So.2d 708, 718, writ denied, 06–1669 (La.10/6/06), 938 So.2d 78. However, if a district court conducts no Daubert analysis of any kind, the exclusion of the expert's evidence without an evaluation of the relevant reliability factors is legal error. Corkern [v. T.K. Valve], 934 So.2d [102] at 1072 [ (La.App. 1st Cir.3/29/06) ].

Carrier v. City of Amite , 08–1092, pp. 4–5 (La.App. 1 Cir. 2/13/09), 6 So.3d 893, 897, writ denied 09–0919 (La. 6/5/09), 9 So.3d 874 (emphasis added).

We find the trial court failed to conduct a proper Daubert analysis. In fact, the methodology at issue here was not even called into question by the Defendants. Defendants agreed with Dr. Williams' position that there are four reliable diagnostic tests which he could have administered to Jones to verify his opinion as to the cause of her radicular pain. Defendants did not assert, and no evidence was put forth, that any of these diagnostic tests were unreliable or not generally accepted. They argued instead, that because Dr. Williams admitted he did not conduct these tests he should not be allowed to give an expert opinion on chemical radiculopathy. This allegation merely raised a question as to Dr. Williams' application, or rather his refusal to apply, accepted methodologies. This goes only to the weight of his testimony regarding whether Jones suffered from radicular pain in her leg as a result of injury to her back sustained in this accident. The "hearing," which consisted of no more than argument by counsel for each side, did nothing to inquire into the validity of any methodology used or any methodology the defense argues should have been used. This was legal error.

Additionally, because Dr. Williams was Jones' treating orthopedic surgeon his testimony was relevant and useful in determining her past, present and future medical costs as well as her general damages for pain and suffering. The Louisiana Code of Evidence, Article 401 defines relevant evidence as "... evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." "All relevant evidence is admissible, except as otherwise provided by the...