Opinion
No. 2021-CC-00270
04-13-2021
Lisa R. FRIEDLEY and Robert J. Friedley v. Paul V. PULIDO, Gunite Express, and General Star Indemnity Company
Writ application denied.
Genovese, J., would grant and assigns reasons.
Hughes, J., would grant for the reasons assigned by J. Genovese.
Crichton, J., additionally concurs and assigns reasons.
McCallum, J., additionally concurs for the reasons assigned by J. Crichton.
GENOVESE, J., would grant and assigns reasons.
I find that the trial court's decision to exclude Dr. Bain's "expert" testimony in this case was well within its broad discretion. Numerous courts, including this one, have excluded Dr. Bain's testimony, repeatedly noting the same flaws in his approach. Without sufficient facts and data, he makes unsubstantiated assumptions and repeatedly comes to the speculative conclusion that the plaintiff was involved in a minor accident with no potential for injury. Noteworthy, in Blair , 19-00795, pp. 15-16 (emphasis added), this Court explained its decision to exclude Dr. Bain's testimony thusly:
It is critical to our holding that Dr. Bain expressed his opinion that Plaintiff was not injured by the collision at issue (i) without condition or stipulation in his report that his conclusions were premised on assumptions he made about the position of the Plaintiff , (ii) without acknowledging that Plaintiff was not looking ahead and therefore possibly not in a "flexed upright position" when he was struck by Ms. Brewer's vehicle, and (iii) without recognition of the limitations on his ability to ascertain the extent of damage to the vehicles because he did not inspect the actual vehicles involved or speak with damage appraisers .
The record in this case reflects that Dr. Bain's opinions are based on the same inadequate, speculative approach. Specifically Dr. Bain has admitted in deposition that:
(1) He did not inspect either of the vehicles or the trailer involved in the accident in this case.
(2) He did not investigate the scene of the accident.
(3) He did not reconstruct the accident.
(4) He did not have a copy of the defendants’ accident reconstruction expert report when he wrote his report.
(5) He did not perform a simulation of the accident.
(6) He did not perform an independent calculation of peak acceleration.
(7) He did not speak to the defendant driver or review his deposition testimony.
(8) He did not read the injured plaintiff's deposition testimony.
(9) He did not review any of the treating physicians’ deposition testimony.
(10) He did not review all of the injured plaintiff's medical records.
Under these circumstances, I find the record amply supports the exclusion of Dr. Bain's testimony in its entirety pursuant to La. C.E. art. 702(A)(2). There was no abuse of discretion in this case. Thus, I would grant the plaintiffs’ writ, reverse the Court of Appeal, and reinstate the decision of the trial court.
Crichton, J., additionally concurs and assigns reasons:
I agree with the denial of plaintiffs’ writ application. In reaching its holding, the court of appeal correctly cited this Court's recent ruling in Blair v. Coney for the significant principle that "[a] district court is afforded broad discretion in determining whether expert testimony is admissible, and its decision with respect thereto shall not be overturned absent an abuse of that discretion." Blair v. Coney , 2019-0795, p. 5 (La. 4/3/20), ––– So.3d –––. The district court did not abuse its discretion in excluding Dr. Charles E. Bain from testifying in areas outside of his expertise in the instant case. C.E. art. 702 ("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 ..."); see Blair , 2019-0795 at p. 9 ("[T]he failure to satisfy any of the five elements disqualifies a witness seeking to testify on matters of expert opinion."). Nor did the district court abuse its great discretion in finding the probative value of certain inflammatory remarks made by Dr. Bain in his testimony was outweighed by their prejudicial effect. C.E. art. 403 ; see also Blair , 2019-0795 at p. 9 ("In exercising its gatekeeping duty, the district court must be mindful of the balancing of interests set forth in C.E. art. 403 – i.e. , whether the probative value of the expert testimony outweighs its prejudicial effect – as an expert's testimony can be misleading and prejudicial if this role is not properly satisfied").
The admission of an expert's testimony in one or more areas while excluding it in others does not offend the Code of Evidence, however, as long as the district court is "vigilant to not allow [the expert] to stray from his limited testimony if the opposing party makes proper objections." Friedley v. Pulido , 2020-1128 (La. App. 1 Cir. 1/19/21) (Holdridge, J., concurring); see also Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 596, 113 S.Ct. 2786, 2786, 125 L.Ed.2d 469 (1993) ("Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence."). Accordingly, in my view the court of appeal correctly reversed the exclusion of the entirety of Dr. Bain's testimony to the extent the district court judgment did not find certain portions thereof to be inadmissible under C.E. art. 702 or C.E. art. 403.
See, e.g., Blair v. Coney , 19-00795 (La. 4/3/20), ––– So.3d ––––, Godchaux v. Peerless Ins. Co. , 13-1083 (La.App. 3 Cir. 6/4/14), 140 So.3d 817, writ denied , 14-1411 (La. 10/3/14), 149 So.3d 801 ; Parker v. NGM Ins. Co. , No. 15-2123, 2016 WL 3546325 (E.D. La. June 23 2016) ; Lascola v. Schindler Elevator Corp. , No. 08-4802, 2010 WL 971792 (E.D. La. Mar. 12, 2010) ; Breaud v. Werner Enterprises, Inc. , 03-860, 2006 WL 8432363 (M.D. La. Mar. 20, 2006).