Said v. Federated Rural Elec. Ins. Exch.

• Decision Date: 21 October 2020
• Docket Number: 19-915
• Citation: 305 So.3d 998
• Parties: Mohab SAID v. FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, et al.
• Court: Court of Appeal of Louisiana — District of US

305 So.3d 998

Mohab SAID

v.FEDERATED RURAL ELECTRIC INSURANCE EXCHANGE, et al.

19-915

Court of Appeal of Louisiana, Third Circuit.

October 21, 2020

Rehearing Denied December 16, 2020

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.

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

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 pretrial 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.

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.

(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.

"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...