Opinion
NUMBER 2013 CA 1288
07-03-2014
MICHAEL HUDSPETH v. ALLSTATE INSURANCE COMPANY AND CINALYN MCCONNELL
Vincent L. Bowers New Orleans, LA Counsel for Plaintiff/Appellant Michael Hudspeth James D. "Buddy" Caldwell Attorney General William S. Culver, Jr. Assistant Attorney General New Orleans, LA Counsel for Defendant/Appellee State of Louisiana, through the Department of Transportation and Development
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket Number 2006-13513
Honorable Hillary J. Crain, Judge
Vincent L. Bowers
New Orleans, LA
Counsel for
Plaintiff/Appellant
Michael Hudspeth
James D. "Buddy" Caldwell
Attorney General
William S. Culver, Jr.
Assistant Attorney General
New Orleans, LA
Counsel for
Defendant/Appellee
State of Louisiana,
through the Department
of Transportation and
Development
BEFORE: PARRO, GUIDRY, AND DRAKE, JJ.
GUIDRY, J.
A motorcyclist, who was severely injured when he successfully avoided a collision at an intersection, appeals a judgment dismissing his claims against the State of Louisiana through the Department of Transportation and Development (DOTD). Finding no error in the jury's verdict, we affirm.
FACTS AND PROCEDURAL HISTORY
This case comes before us again, this time pursuant to a trial on the merits. It arises out of an accident that occurred on September 21, 2005, in St. Tammany Parish. At approximately 3:00 p.m. on that date, Michael Hudspeth was operating his motorcycle in a southbound direction on Louisiana Highway 433 near Lake Castle Private School. At that same time, defendant Ginalyn McConnell (incorrectly identified in the record as "Cinalyn McConnell" in the pleadings in this matter) was leaving Lake Castle Private School and traveling in a westbound direction on Sylve Road, a parish roadway. Mr. Hudspeth alleged that Mrs. McConnell suddenly and without warning made a left turn off of Sylve Road and onto Louisiana Highway 433 into his path of travel. To avoid colliding with Mrs. McConnell's vehicle, Mr. Hudspeth laid down his motorcycle, thereby sustaining serious injuries, including fractures to his neck in two places.
Initially, on August 10, 2006, Mr. Hudspeth filed suit against Mrs. McConnell and her insurer, Allstate Insurance Company. Thereafter, pursuant to a first supplemental and amended petition for damages filed on September 25, 2006, the DOTD, the Parish of St. Tammany, and Lake Castle Private School, Inc. were added as party defendants. Following the filing of preliminary exceptions and various discovery motions, Lake Castle Private School, Inc. and its insurer, Clarendon America Insurance Company, filed a motion for summary judgment on December 3, 2007. On March 11 and 27, 2008, the DOTD and the Parish of St. Tammany likewise filed separate motions for summary judgment respectively. Following hearings on the separate motions, the trial court granted the motions for summary judgment filed on behalf of the Parish of St. Tammany, Lake Castle Private School, Inc. and Clarendon America Insurance Company, which judgments were unsuccessfully appealed by Mr, Hudspeth. See Hudspeth v. Allstate Insurance Company, 09-0119 (La. App. 1st Cir. 7/17/09), 15 So. 3d 384 (unpublished opinion), writ not considered, 09-1882 (La. 11/6/09), 21 So. 3d 314, and Hudspeth v. Allstate Insurance Company, 09-0120 (La. App. 1st Cir. 7/17/09), 15 So. 3d 384 (unpublished opinion), writ not considered, 09-1881 (La. 11/6/09), 21 So. 3d 314.
The trial court denied the DOTD's motion for summary judgment, and the matter proceeded to a trial before a jury against Mrs. McConnell and the DOTD. At the conclusion of the trial, the jury was presented with interrogatories, the first of which stated: "Do you find that fault or negligence on the part of the State of Louisiana, Department of Transportation and Development, caused or contributed to this accident?" Following that first interrogatory was the following parenthetical comment: "If your answer to this question is Yes, proceed to question 2. If your answer is No, sign this form and return to the courtroom." The jury answered "No." Thereafter, the trial court signed a judgment in conformity with the jury's verdict, dismissing the plaintiff's claims against the DOTD, which Mr. Hudspeth now appeals.
Question (Interrogatory) number 2 asked whether the jury found thatany fault or negligence on the part of "Cinalynn" McConnell caused or contributed to the accident.
This court issued a rule to show cause why the original judgment, signed by the trial court on March 25, 2013, should not be dismissed due to a lack of appropriate decretal language. Thereafter, the trial court signed an amended judgment on September 19, 2013 containing appropriate decretal language. Accordingly, we recall the rule to show cause issued in this matter and maintain the appeal.
ISSUES PRESENTED FOR REVIEW
On appeal, plaintiff asserts the following issues in seeking reversal of the trial court judgment adopting the verdict of the jury:
1. Whether a court should strike jurors for cause who admit in voir dire in a civil trial for personal injuries that they would require a plaintiff to prove his case by more than a preponderance of the evidence[.]
2. Whether a court in an automobile collision case should allow evidence of a plaintiff's driving actions that occur [a] quarter of a mile before the collision and did not contribute to the collision[.]
3. Whether a court should allow a jury to consider documentary evidence not disclosed to plaintiff before trial in discovery and in violation of the court's pre-trial order[.]
4. Whether a jury can consider expert testimony that is based on erroneous facts and is internally inconsistent[.]
5. Whether the DOTD has the burden to prove it followed engineering guidelines and protocols in designing state highways once a plaintiff has proven a prima facie case[.]
DISCUSSION
In his first assignment of error, Mr. Hudspeth argues that the trial court abused its discretion in failing to strike three jurors for cause and that such abuse requires a de novo review of the jury's verdict. The three jurors, Karen Hess (#102), Letha Holden (#107), and Martin Kretschmar (#129), all initially expressed that they would need more than a mere preponderance of the evidence to rule in favor of the plaintiff. However, before the parties began selecting jurors, the trial court made the following inquiry:
Ladies and gentlemen, just one more thing. Some of you were questioned as to the preponderance of the evidence. I want all of you to understand that, at the conclusion of the case, I'll instruct you as to the law that's applicable to the case, and you are required to accept the law as given to you by the Court as being the law of the state of Louisiana and to apply that law to the facts of this case. Is there any of you that don't think you can do that?The transcript reveals no response to the trial court's inquiry, and the parties proceeded to select jurors. The plaintiff used one peremptory strike to excuse Ms. Hess, but Mrs. Holden and Mr. Kretschmar both served on the jury that was selected.
A juror may be challenged for cause when the juror has formed an opinion in the case or is not otherwise impartial, the cause of his bias being immaterial. La. C.C.P. art. 1765(2). A trial court has great discretion in ruling on challenges for cause, and the appellate court should not disturb its ruling unless the voir dire, as a whole, indicates an abuse of discretion. In re Medical Review Panel on Behalf of Laurent, 94-1661, pp. 6-7 (La. App. 1st Cir. 6/23/95), 657 So.2d 713, 718. If a prospective juror is able to declare to the district court's reasonable satisfaction that he could render an impartial verdict according to the law and evidence, a challenge for cause to that juror is properly denied. However, while the trial court is accorded broad discretion in ruling on challenges for cause, a challenge for cause should be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice, or inability to render judgment accordingly may be reasonably implied. Scott v. American Tobacco Company, 01-2498, p. 6 (La. 9/25/01), 795 So. 2d 1176, 1182.
The three jurors responded that they would need more in response to specific voir dire questioning by plaintiff's counsel, in which he stated:
Some people have difficulty awarding a case and finding in favor of a claimant merely with 51 percent, but that's all it is, ladies and gentlemen. Okay?Mr. Kretschmar responded "I would need more," to which plaintiff's counsel said, "fair enough" and asked, "who else feels like Mr. Kretschmar?" Mrs. Hess responded that she felt the same way, and Mrs, Holden responded, "[i]t feels like I may need a little bit more than that too because you never know. We don't know what the situation is."
So I want to ask you: Do you have any strong feelings one way or the other about judging this case with that standard; or do you feel that, you know, I have a hard time getting that close to the bone. I need to see more. I need to see 60 percent or 70 percent as it gets closer? ...
It's important because we don't have to come in here and prove way up here (indicating). Okay? We only have to prove more than 50 percent.
Notably, while the respective jurors' candid responses to plaintiff's counsel clearly show that they would want Mr. Hudspeth to prove by more than a preponderance of the evidence that he was entitled to judgment in his favor, none of the jurors stated that they would not apply the preponderance standard in judging the case. Instead, when specifically asked, along with all the other prospective jurors, if they could not apply the applicable law as instructed by the trial court, none of the jurors in question responded that they could not. Thus, we find the trial court did not abuse its discretion in denying the challenges for cause as to Mr. Kretschmar, Mrs. Hess, and Mrs. Holden. See Simms v. Progressive Insurance Company, 38,804, p. 5 (La. App. 2d Cir. 9/29/04), 883 So. 2d 473, 480, writ denied, 04-2871 (La. 1/28/05), 893 So. 2d 78.
Next, Mr. Hudspeth asserts that the trial court abused its discretion in allowing testimony regarding the manner in which he was driving his motorcycle prior to the accident.
Generally, the trial court is granted broad discretion on its evidentiary rulings, and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Odyssea Vessels, Inc. v. A & B Industries of Morgan City, Inc., 11-2009, p. 15 (La. App. 1st Cir. 6/13/12), 94 So. 3d 182, 192. Except as otherwise provided by law, all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. La. C.E. art. 401. Whether evidence is relevant is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of that discretion. Travis v. Spitale's Bar. Inc., 12-1366, p. 8 (La. App. 1st Cir. 8/14/13), 122 So. 3d 1118, 1126, writs denied, 13-2409, 13-2447 (La. 1/10/14), 130 So. 3d 327 and 329. Moreover, an error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected. La. C.E. art. 103(A). The party alleging prejudice by the evidentiary ruling of the trial court bears the burden of so proving. Mapp Const., LLC v. Southgate Penthouses, LLC, 09-0850, p. 18 (La. App. 1st Cir. 10/23/09), 29 So. 3d 548, 561, writ denied, 09-2743 (La. 2/26/10), 28 So. 3d 275.
At trial, Mr. Hudspeth objected to Ross Pool, a DOTD witness who testified about his observations of Mr. Hudspeth's driving prior to the accident, asserting that such testimony was inadmissible as either bad character evidence or irrelevant. The plaintiff himself, however, testified on direct and cross examination regarding his driving behavior prior to the accident. Thus, as the plaintiff opened the door to such testimony, we do not find that the trial court abused its discretion in allowing the DOTD to offer testimony of the same character. See Thompson v. Goodman, 13 La. App. 186, 187, 126 So. 527, 528 (La. App. 1st Cir. 1930).
In his third assignment of error, Mr. Hudspeth alleges that the trial court erred in allowing the jury to consider documentary evidence that was not disclosed to him through discovery prior to trial and in violation of the trial court's pre-trial order. The objectionable evidence is a copy of the change order for the overlay project that the DOTD performed on Louisiana Highway 433 in 1997, which was signed by the chief engineer for DOTD. The copy of the change order possessed by the plaintiff did not contain the signature of the chief engineer, and, as the result of that missing signature, on direct examination of the plaintiff's expert witness, Dr. Olin Dart, it was pointed out that the change order had not been reviewed by senior DOTD engineers as required by DOTD procedures. However, the DOTD's expert witness, Vernon "Dean" Tekell, Jr., testified that the plan change was signed by the chief engineer for the DOTD. The plaintiff objected to Mr. Tekell's testimony on the basis that there was no evidence to support the testimony, and it was insisted that proof of Mr. Tekell's assertion be produced, at which time the DOTD produced state's exhibit 18, which is a copy of the plan change that shows the signature of the chief engineer, and the trial court admitted it into evidence.
Mr. Tekell testified that he had discovered that the plan changes for the turn lane were not kept in the offices of District 62, which was the district office that oversaw the addition of the turn lane to Louisiana Highway 433, but had been sent to DOTD headquarters in Baton Rouge.
A trial court is granted broad discretion in determining the admissibility of evidence. Furthermore, courts are to resolve the admissibility of evidence in favor of receiving the evidence. Color Stone International Inc. v. Last Chance CDP, LLC, 08-35, p. 11 (La. App, 5th Cir. 5/27/08), 986 So. 2d 707, 715. In Color Stone, the appellate court found that the trial court did not abuse its discretion in admitting undisclosed telephone records, as well as the testimony of a witness whose name was not included on the witness list for trial, as the plaintiff was unable to show how it was prejudiced by the admission of the evidence. Color Stone International Inc., 08-35 at p. 12, 986 So. 2d at 715.
We likewise hold that the trial court did not abuse its discretion in admitting the evidence in the instant matter. Although the lack of the chief engineer's signature fell in line with the plaintiff's theory of the case that the DOTD did not follow proper standards in designing the turn lane, it is significant to note that the plaintiff's own witness was reluctant to unequivocally state that the plan change adding the turn lane had not been approved by senior management. Instead, Dr. Dart simply testified that "[n]o documentation has been provided to show" that the design of the turn lane had been reviewed by the chief engineer. Further, when asked if he had any information whatsoever that senior management approved the design for the turn lane, Dr. Dart replied: "No. There's indication, you know, in their construction manual when a - - specific specifications, that when there is a plan change, there is usually a form completed which would have the approval of the chief engineer at some point." Considering this evidence, we do not find that the admission of the signed change form was so unduly prejudicial that it should not have been admitted. Thus, we reject the plaintiff's third assignment of error.
In his final two assignments of error, Mr. Hudspeth basically asserts that the jury should have given no weight to the testimony of the DOTD's expert, Mr. Tekell, and as such, the DOTD failed to prove that the turn lane installed at the intersection where the accident occurred was not defective. In support of these assertions, Mr. Hudspeth points out four instances during Mr. Tekell's testimony in which he alleges that Mr. Tekell's testimony should not have been deemed credible. All of the objectionable testimony occurred during cross examination.
An appellate court, in reviewing a jury's factual conclusions, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the jury's conclusion, and the finding must be clearly wrong. See Kaiser v. Hardin, 06-2092, pp. 11-12 (La. 4/11/07), 953 So. 2d 802, 810. The issue to be resolved on review is not whether the jury was right or wrong, but whether the jury's fact-finding conclusion was a reasonable one. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness's story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a fact finder's, finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So. 2d at 844-45.
Some of the testimony that the plaintiff challenges was Mr. Tekell's responses to whether speed impacts the likelihood of an accident occurring and whether a sight impediment existed at the intersection because of the installation of the turn lane. In both instances, rather than simply addressing the direct question posed, Mr. Tekell instead conditioned his response, but he would later concede the point on being asked to limit his response to the direct question posed. When asked whether speed increases the likelihood of an accident, Mr. Tekell initially responded, "[n]o. Speed increases the likelihood of severity of the accident." Yet, when further questioned regarding his response, Mr. Tekell conceded that speed could increase the likelihood of an accident, but still maintained that "generally, speed increases the severity of the crash." Likewise, regarding the sight impairment at the accident site, Mr. Tekell initially responded that there was no sight impairment caused by the turn lane alone, but explained that sight impairment existed when there was traffic in the turn lane.
Our review of the record indicates that the testimony of Mr. Tekell was reasonable, and we cannot say that it was so internally inconsistent that no reasonable fact finder could believe it.
In his remaining argument challenging Mr. Tekell's testimony, the plaintiff contends that Mr. Tekell improperly testified about matters that he did not personally observe, such as the traffic conditions at the intersection of Louisiana Highway 433 and Sylve Road prior to the construction of the turn lane and whether DOTD engineers had conducted site visits prior to adding a change order for the addition of the turn lane at the intersection. We find no merit in this argument.
The plaintiff's expert witness, Dr. Dart, emphasized in his testimony that he had received no information or documentation that the DOTD had completed a traffic study or otherwise evaluated the traffic and road conditions at the site of the accident prior to installing the turn lane. Mr. Tekell likewise admitted that he had no evidence that the DOTD had specifically evaluated the traffic and road conditions at the accident site prior to installing the turn lane; however, in his testimony, Mr. Tekell emphasized that he also had no evidence to show that the DOTD had not evaluated traffic and road conditions either. He further testified that, while he could not state specifically what information was considered by the engineer who designed the turn lane, the DOTD did possess base data about traffic volumes, traffic speeds, and whether a location is an abnormal crash location.
Mr. Tekell stated that he formed his opinion as a result of reviewing depositions, inspecting the accident site, and reviewing the plans and specifications for the turn lane. He identified the specific testimony of witnesses, such as the principal of the Lake Castle Private School, Brian J. Butera, who had personally observed and testified regarding the traffic conditions that existed at the intersection prior to the installation of the turn lane. Mr. Tekell further testified that it has been his experience, having testified as an expert in traffic engineering in nearly 100 cases, that DOTD engineers always personally visit a site before designing plans for a roadway. Mr. Butera also testified that he remembered discussing the proposed turn lane with an engineer from the DOTD.
At trial, Mr. Butera mentioned that he had had a stroke, so there were certain things that he could not remember.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. La. C.E. art. 703. In a civil case, the expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. La. C.E. art. 705(A).
The factual basis for an expert opinion determines the credibility of the testimony. It is the responsibility of opposing counsel to explore the factual basis for the opinion and thus, determine its reliability. An unsupported opinion can offer no assistance to the fact finder, and should not be admitted as expert testimony. Brown v. City of Madisonville, 07-2104, pp. 6-7 (La. App. 1st Cir. 11/24/08), 5 So. 3d 874, 880-81, writ denied, 08-2987 (La. 2/20/09), 1 So. 3d 498.
It is evident that Mr. Tekell relied on information made known to him as well as that perceived by him, which is well within the permissible scope of expert testimony. In reviewing the evidence presented in this case and Mr. Tekell's testimony as a whole, we do not find that Mr. Tekell's opinion was unsupported. As such, we find no basis for concluding that his testimony should have been discredited or completely rejected by the jury.
This leaves us to consider the jury's ultimate conclusion that the DOTD did not cause or contribute to the accident that occurred. Dr. Dart testified that the turn lane installed by the DOTD at the intersection of Louisiana Highway 433 was defective in two ways, because (1) it increased the number of conflicts at the intersection, and (2) the turn lane extended through the intersection. Mr. Tekell opined differently. Mr. Tekell testified that while the turn lane presented an additional conflict, it did not increase the number of conflicts that existed at the intersection. Mr. Tekell explained that because motorists had simply lined up along the shoulder of Louisiana Highway 433 prior to the installation of the turn lane, the installation of the turn lane did not create a "new" conflict of vehicles being in the area of the turn lane at the intersection.
According to Mr. Tekell, a conflict is a potential interaction between vehicles going in opposing directions.
--------
Dr. Dart also found that the turn lane running through the intersection was unacceptable and that it was defective, because he could find no publication of engineering standards that provided such a design. He acknowledged on cross examination, however, that he had found no reference in any publication that expressly prohibited the design. Conversely, Mr. Tekell testified that the turn lane "design was not defective and unsafe and that it generally conformed and was compliant with the Manual on Uniform Traffic Control Devices, and that ... the highway in the area of the crash was properly designed and maintained by DOTD."
When opinions of expert witnesses differ, it is for the trier of fact to determine the most credible evidence, and these determinations will not be overturned unless it is proven that the expert's stated reasons are patently unsound. Brown, 07-2104 at p. 7, 5 So. 3d at 881.
In this case, not only was the jury presented with conflicting opinions, but the experience of the two experts differed markedly as well Dr. Dart testified that he has a bachelor's degree, a master's degree, and a Ph.D in civil engineering, and he has spent most of his career teaching and consulting regarding highway design and traffic engineering. Although accepted by the trial court as an expert in traffic engineering, highway design, traffic safety, and accident reconstruction, Dr. Dart admitted that he had never actually designed an intersection or turn lane. Mr. Tekell stated that he has a bachelor's degree in civil engineering, but testified extensively about his work experience in designing various roadways for the City and Parish of Lafayette.
Considering the testimony of the two experts as a whole and the evidence presented in support of their conflicting opinions, we cannot say that jury erred in crediting the testimony of Mr. Tekell over that of Dr. Dart to conclude that the turn lane was not defectively designed. Other than finding that the turn lane should not have run through the intersection and that the turn lane created additional conflicts, Dr. Dart admitted that there was no problem with the traffic control devices or signage used at the intersection. Both experts presented equally plausible explanations to support their opinions. Therefore, the jury's decision to credit the testimony of Mr. Tekell over that of Dr. Dart was not clearly wrong, and we find no error in the jury's conclusion that the DOTD did not contribute to Mr. Hudspeth's accident.
CONCLUSION
For the foregoing reasons, we find that the trial court did not abuse its discretion in its rulings on the jury challenges and admission of evidence. Moreover, we find no manifest error in the jury's ultimate determination of liability in this case. Accordingly, we affirm the judgment of the trial court, based on the jury's verdict, and assess all the costs of this appeal to the plaintiff, Michael Hudspeth.
AFFIRMED.