Opinion
NO. 2021-C-0205
05-12-2021
Dominic VIGNE, et al v. COOPER AIR FREIGHT SERVICES, National Interstate Insurance, Curtis House, and The Ernest N. Morial New Orleans Exhiibition Hall Authoirity
Gerald Hampton, R. Christopher Harrison, HAMPTON & HARRISON, 650 Poydras Street, Ste. 2107, New Orleans, LA 70112, COUNSEL FOR RELATOR Nathan M. Gaudet, PERRIER & LACOSTE, One Canal Place, 365 Canal Street, Ste. 2550, New Orleans, LA 70130, COUNSEL FOR RESPONDENT
Gerald Hampton, R. Christopher Harrison, HAMPTON & HARRISON, 650 Poydras Street, Ste. 2107, New Orleans, LA 70112, COUNSEL FOR RELATOR
Nathan M. Gaudet, PERRIER & LACOSTE, One Canal Place, 365 Canal Street, Ste. 2550, New Orleans, LA 70130, COUNSEL FOR RESPONDENT
(Court composed of Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins, Judge Rosemary Ledet, Judge Edwin A. Lombard )
Judge Regina Bartholomew-Woods
Relators, Dominic Vigne, Rickey Dantzler, and Donya Holmes ("Relators"), seek review of the trial court's judgment dated February 11, 2021, granting Respondents’, Cooper Air Freight Services, National Interstate Insurance, Curtis House, and the Ernest N. Morial New Orleans Exhibition Hall Authority ("Respondent's"), "Motion to Exclude Evidence Regarding Untimely Life Care Expert Report, Undisclosed Expert Opinions, And Certain Testimony by Plaintiffs’ Expert Stacie Nunez" ("the Motion"). For the foregoing reasons, we grant the writ and reverse the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
On August 28, 2017, Relators were occupants in an armored vehicle owned by their employer, Loomis Armored Inc., when the vehicle was rear-ended by Respondent Curtis House, who was driving a tractor-trailer owned by his employer, Respondent Cooper Freight Services.
On July 23, 2018, Relators filed suit alleging substantial personal injuries.
The matter was removed to federal district court in February 2019, but remanded to the state trial court in June 2019. Upon remand, trial was set for June 15, 2020, with a discovery closing date of March 16, 2020. The pre-trial order provided that Relators were to file their witness and exhibit list no later than October 22, 2019, and identify whether the witnesses were going to be lay witnesses or expert. Respondents were to file their witness and exhibit list no later than November 22, 2019. Relators were to provide all expert reports, excluding reports from treating physicians, by February 17, 2020. Respondents were to provide Relators with all expert reports by March 16, 2020.
On October 21, 2019, Relators filed their witness and exhibit list. Stacie Nunez was listed as a witness and identified as a licensed rehabilitation counselor. On November 20, 2019, Respondents filed their witness and exhibit list which also named Ms. Nunez and identified her as "Plaintiff's expert." Relators provided Respondents with Ms. Nunez's expert report on March 9, 2020.
Relator's list specifically designated Ms. Nunez as an "expert."
In response, Respondents filed a "Motion To Exclude Evidence Regarding Untimely Life Care Expert Report, Undisclosed Expert Opinions, And Certain Testimony By Plaintiffs’ Expert Stacie Nunez" seeking to exclude Ms. Nunez's report and prevent her from testifying at trial. In the motion, Respondents asserted that Relators did not timely provide Ms. Nunez's expert report. Relators opposed the motion on two bases: (1) Ms. Nunez did not provide them with the report until then, and (2) Respondents would not be prejudiced because trial had been continued due to the COVID-19 pandemic.
Trial was originally scheduled for June 15, 2020. However, due to the COVID-19 pandemic and the intermittent closures of the judicial system, including the trial court, the trial was rescheduled. Trial is currently scheduled for February 14, 2022.
After a hearing on September 24, 2020, the trial court rendered judgment on February 11, 2021, granting Respondents’ motion to exclude Ms. Nunez's expert report and testimony. The trial court ordered the evidence and testimony from Ms. Nunez excluded from the trial. Furthermore, Relators were ordered not to present or offer into evidence the testimony or opinions of Ms. Nunez. In its reasons for judgment, the trial court reasoned there had been no changes or developments after the end of discovery to warrant an extension of the deadline and the untimely filing of the report "tied Defendants’ hands with regards to filing a timely [responsive] report of their own...." It is from the trial court's exclusion of Ms. Nunez's report and testimony that Relators have filed the instant supervisory writ application specifically requesting Ms. Nunez be allowed to testify at trial.
"Reasons for judgment only set forth the basis for the court's holding and are not binding." Scott v. Am. Tobacco Co. , 2015-1352, p. 11 (La. App. 4 Cir. 5/25/16), 195 So. 3d 624, 630.
DISCUSSION
Timeliness of Writ Application
Before addressing the merits of the writ, this Court shall first address a procedural issue raised in Respondents’ opposition. Respondents assert Relators’ application for supervisory writ is untimely and should not be considered by this Court. Respondents assert that a party intending to apply for supervisory writ review should file a notice within thirty (30) days of receipt of the Notice of Judgment in accordance with Rule 4-3, Uniform Rules - Courts of Appeals. Respondents further assert that when the writ pertains to an interlocutory matter, rendition in open court constitutes notice per La. C.C. Pro. 1914A.
"The judge who has been given notice of intention ... shall immediately set a reasonable return date within which the application shall be filed in the appellate court. The return date in civil cases shall not exceed 30 days from the date of notice, as provided in La. C.C.P. art. 1914."
"A. Except as provided in Paragraphs B and C of this Article, the rendition of an interlocutory judgment in open court constitutes notice to all parties."
The trial court issued its judgment orally, in open court, on September 24, 2020. At the end of the hearing, Relators requested written reasons for judgment which the court agreed to provide. Respondents’ attorney volunteered to draft the judgment and was so ordered. The judgment was signed and notice sent out on February 11, 2021. Relators then filed the notice of intent on February 24, 2021. Respondents point out that the notice of intent came nearly five (5) months after the judgment was orally given. Respondents argue that even though the trial court did grant Relators’ motion and set a return date, the notice was untimely and therefore this Court should deny the writ.
Because the notice of intent was filed five (5) months after the judgment made in open court, on its face, the notice appears to be untimely. When a writ application is untimely on its face, it may be considered by the appellate court only if an exception to the 30-day rule applies. Carter v. Rhea , 2001-0234, p. 3 (La. App. 4 Cir. 4/25/01), 785 So.2d 1022, 1024. One exception to the rule is when a written judgment is expected or required. Kosmitis v. Bailey , 96-1573, p. 1-2 (La. 10/4/96), 680 So.2d 1167, 1168 ; Fischer v. Chad Rogers , Cuvee, L.L.C., 2019-0337, p. 4 (La. App. 4 Cir. 10/9/19), 280 So.3d 1199, 1203, writ granted sub nom. Fischer v. Rogers , 2019-01808 (La. 1/22/20), ––– So.3d ––––, 2020 WL 415828 (Mem). When a party is ordered to prepare a judgment, it is not reasonable to expect a party to seek review before the written judgment has been prepared. Kosmitis , 680 So.2d at 1168. When the record indicates the trial court contemplated rendering a written judgment, a writ application is considered timely when filed within thirty (30) days of the mailing of the notice of signing. Fischer , 280 So.3d at 1203.
In the current case, the transcript of the September 24, 2020 hearing reflects that the trial court contemplated rendering a written judgment after it was requested to provide written reasons for its judgment and furthermore, when it ordered Respondents to draft the judgment. The judgment was later signed on February 11, 2021 and notice sent out the same day. Relators timely filed the notice of intent on February 24, 2021 within the 30-day time period.
Thus, based on the aforementioned, we find that Relators’ application is timely and therefore should be given due consideration by this Court.
Timeliness of Life Care Report
In the instant case, Relators originally listed Stacie Nunez as an expert witness who would offer testimony regarding their future medical costs and create a Life Care Report. Pursuant to the pre-trial order issued by the trial court, Relators were to turn in a copy of the Life Care Report by February 17, 2020; however, Relators did not turn the report in until March 9, 2020. As stated previously, the transcript filed with Relator's writ reveals that the report was late because counsel for Relators did not receive the report in a timely manner from their witness.
On July 24, 2020, Respondents filed a motion asserting that the Life Care Report was filed after the due date set by the pre-trial order issued by the trial court and should be excluded. Conversely, Relators asserted that Respondents were not prejudiced by the delay because Respondents knew Ms. Nunez would be testifying and knew what the nature of her testimony would be. Moreover, Relators asserted that the closing of the courts due to the pandemic gave Respondents nearly a year to review the report and plan a rebuttal strategy.
This Court takes judicial notice that the Louisiana Supreme Court suspended all jury trials from March 16, 2020 until March 31, 2021 due to the COVID-19 pandemic.
The trial court, noting the importance of adhering to the pre-trial orders, granted Respondent's Motion. In its reasons for judgment, the trial court stated there was no prejudice to Relators because current treating physicians would be the "witnesses best suited" to testify regarding future medical needs and costs.
We recognize that pre-trial procedures are set in place to avoid surprises and allow orderly disposition of the case. McDuffie v. ACandS, Inc. , 2000-2779, p. 3 (La. App. 4 Cir. 2/14/01), 781 So.2d 628, 631 (citations omitted). "Because of the need to insure for an orderly disposition of cases, a trial judge is given broad discretion to determine whether or not to modify a pretrial order listing witnesses and narrowing issues." Id . An appellate court should not disturb a judge's pretrial order absent an abuse of discretion. Id . at 633 ; State, Dep't of Transportation & Dev. v. Moreau , 2017-721, p. 3 (La. App. 3 Cir. 8/29/18), 255 So.3d 618, 623. However, when a trial court's failure to modify the pretrial ruling severely limits a party's ability to prove their case, manifest error occurs. See Id . at 631 (citing Neff v. Rose , 546 So.2d 480 (La. App. 4 Cir. 1989) ; Wells v. Gillette , 620 So.2d 301 (La. App. 4 Cir. 1993) ).
Though granted great discretion in modifying pretrial orders, the trial court is tasked with ensuring its rulings rest upon the "merits of the controversy" rather than "the basis of technicalities." McDuffie , 781 So.2d at 631. "There is no authority to limit severely a party's rights for the technical, though justifiable, violation of a pretrial order." Id .
The trial court's reasoning that the treating physicians will provide the best testimony regarding future medical costs is contrary to jurisprudential rules established by precedent of this Court, as well as the Second Circuit Court of Appeal. "Future medical expenses must be established with some degree of certainty and be supported with medical testimony and estimation of probable costs." Sanderford v. Lombard , 96-1171, p. 9 (La. App. 4 Cir. 12/11/96), 685 So.2d 1162, 1168. In Sanderford , this Court reduced the award for future damages reasoning the testimony of the treating physician did not provide sufficient certainty regarding what care would be necessary and the costs of the care. Id . Similarly, the Second Circuit found the treating physician's testimony regarding future medical care too speculative and uncertain and reduced the amounts awarded for future medical care. Lewis v. State Farm Ins. Co. , 41,527, p. 16-17 (La. App. 2 Cir. 12/27/06), 946 So.2d 708, 721–22.
The physician testified based on his general knowledge of what could happen with the type of injury the victim had. Id . This Court found the only testimony that was sufficiently detailed was the cost of three (3) clinic visits a year over the course of forty (40) years.
A life care expert, in contrast to a treating physician, looks at multiple factors that contribute to the future care needed including but not limited to: recommendations of treating physicians, estimated costs of medicines and supplies, and lifestyle that may impact the patient. See Giavotella v. Mitchell , 2019-0100, p. 17-18 (La. App. 1 Cir. 10/24/19), 289 So.3d 1058, 1072 ; Cooper v. Bouchard Transp. , 2012-0868, p. 8-9 (La. App. 4 Cir. 3/27/13), 140 So.3d 1, 6-7. All of the aforesaid factors help to create a robust and more precise picture of future medical costs beyond simple speculation. Excluding the testimony of a life care expert is prejudicial to Relators’ ability to recover a certain class of damages. Thus, we find that the trial court committed manifest error in excluding the expert witness’ testimony and the ensuing expert report.
Based on the aforementioned, we grant the writ application and reverse the trial court's order granting the Motion to Exclude Evidence Regarding Untimely Life Care Expert Report, Undisclosed Expert Opinions, and Certain Testimony by Plaintiffs’ Expert Stacie Nunez.
WRIT GRANTED, REVERSED
LEDET, J., CONCURRING WITH REASONS
JENKINS, J., DISSENTS WITH REASONS
LEDET, J., CONCURRING WITH REASONS
Although the report of the plaintiffs’ expert admittedly was late, the trial in this matter is not scheduled until February 14, 2022. Thus, I would find that the trial court abused its discretion in not allowing the expert report. For this reason, I respectfully concur.
JENKINS, J., DISSENTS WITH REASONS
I respectfully dissent. I find no manifest error in the trial court's ruling granting defendants’ motion to exclude evidence regarding the untimely life care expert report, undisclosed expert opinions, and certain testimony by plaintiffs’ expert.
The trial court is afforded great discretion and power over the control of proceedings: "A court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done." La. C.C.P. art. 1631. The Louisiana Code of Civil Procedure affords trial courts wide to implement pretrial orders and insure that their terms are enforced. La. C.C.P. art. 1551 ; See Robertson v. Lafayette Ins. Co. , 11-0975 (La. App. 4 Cir. 2/8/12), 85 So.3d 186, 189-90. Our courts have recognized that the avoidance of surprise and the orderly disposition of each case are inherent in the theory of pre-trial civil procedure and are sufficient reasons for allowing the trial judge to require adherence to the pretrial order in the conduct of an action. See id . (citing Eanes v. McKnight , 262 La. 915, 931-32, 265 So.2d 220, 226-27 (1972) and Brooks v. Sewerage and Water Bd. of New Orleans , 02-2246, p. 5 (La. App. 4 Cir. 4/30/03), 847 So.2d 639, 643 ). An attorney's failure to obey a pretrial order or to participate in a pretrial conference in good faith may be penalized by a wide range of sanctions, under La. C.C.P. art. 1551(C), including making an order prohibiting the disobedient party from introducing designated matters in evidence. La. C.C.P. art. 1471(A)(2).
La. C.C.P. article 1551 provides:
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.
--------
In this case, the pre-trial order to which both parties agreed and signed provided that plaintiffs submit all expert reports, excluding treating physicians, by February 19, 2020. Plaintiffs failed to meet this deadline and provided the defendants with Ms. Nunez's report on March 9, 2020. At the hearing, plaintiffs admitted the failure to comply and stated the only justification for the late filing was that they did not receive Ms. Nunez's report until March 2020. However, plaintiffs did not show that they attempted communication with Ms. Nunez to get the report timely. Additionally, plaintiffs did not file a motion to extend the deadlines in the pre-trial order or even communicate the delay to the defendants. But, plaintiffs contend that the defendants should not be surprised or prejudiced by Ms. Nunez's appearance as an expert witness because she was listed on the witness and exhibit list. However, the witness and exhibit list only identified Ms. Nunez as a licensed rehabilitation counselor. Plaintiffs did not indicate nor make a showing that Ms. Nunez had specialized expert knowledge regarding plaintiffs’ future medical care and costs to which she would testify at trial. In granting the defendants’ motion, the trial court recognized that the plaintiffs’ physicians would be able to provide sufficient evidence and testimony as to the plaintiffs’ future medical care and cost. Thus, the plaintiffs would still be able to introduce similar evidence through the testimony of treating physicians at trial.
Finally, I note that plaintiffs can seek to proffer Ms. Nunez's testimony and expert report at trial, thereby protecting their rights for appeal.
For the foregoing reasons, I find that the trial court acted within its wide discretion in granting defendants’ motion to exclude the untimely life care expert report, undisclosed expert opinions, and certain testimony of plaintiffs’ expert, Ms. Nunez. Accordingly, I would deny the writ.