Opinion
2022 CA 1333
06-02-2023
MONTE WHITE AND WILLIE SMITH v. PRESTON HERBERT, B'S PRODUCTIONS, LLC, LEASING OF LOUISIANA, LLC, AND HALLMARK SPECIALTY INSURANCE COMPANY
Daniel M. Olivier Daryl A. Gray Eric A. Wright Louis H. Thomas, III New Orleans, LA Counsel for Plaintiffs/Appellants Monte White and Willie Smith Robert E. Kerrigan, Jr. Jonathan M. Walsh Megan D. Champagne Marianne Wise Fletchinger New Orleans, LA Counsel for Defendants/ Appellees Preston Hebert, B's Productions, LLC, and Hallmark Specialty Insurance Co.
Appealed from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Suit Number 2018-15191 Honorable Ellen M. Creel, Presiding
Daniel M. Olivier Daryl A. Gray Eric A. Wright Louis H. Thomas, III New Orleans, LA Counsel for Plaintiffs/Appellants Monte White and Willie Smith
Robert E. Kerrigan, Jr. Jonathan M. Walsh Megan D. Champagne Marianne Wise Fletchinger New Orleans, LA Counsel for Defendants/ Appellees Preston Hebert, B's Productions, LLC, and Hallmark Specialty Insurance Co.
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
GUIDRY, C.J.
In this personal injury action, plaintiffs, Monte White and Willie Smith, appeal from a trial court judgment granting summary judgment in favor of defendants, Preston Hebert, B's Productions, LLC, and Hallmark Specialty Insurance Company, and dismissing plaintiffs' claims against them with prejudice. For the reasons that follow, we affirm in part and reverse in part.
Defendant, Preston Hebert, was incorrectly named in plaintiffs' petition as "Preston Herbert."
FACTS AND PROCEDURAL HISTORY
On October 24, 2018, White and Smith filed a petition for damages, naming Hebert, B's Productions, LLC, and Hallmark Specialty Insurance Company as defendants. Plaintiffs alleged that on February 21, 2018, White was driving a 2006 Infinity M35, in which Smith was a guest passenger, East on Interstate 12 in the center lane. Plaintiffs alleged that Hebert was also traveling East on Interstate 12, driving a 2015 Volvo 8000 tractor towing a loaded trailer, in the right lane. Plaintiffs alleged that Hebert changed lanes into White's lane of travel, causing a collision and resulting injuries to plaintiffs.
Thereafter, on September 24, 2021, defendants filed a Motion for Summary Judgment on Liability, asserting that plaintiffs cannot meet their burden of proof that the subject accident was caused by the negligence of defendants. In particular, defendants asserted that the testimony of defendants' retained accident reconstruction expert established that the accident could not have occurred the way plaintiffs state that it did and plaintiffs could have and should have taken evasive measures to avoid the accident. Defendants asserted that plaintiffs did not retain an expert accident reconstruction specialist and therefore, cannot refute the conclusions of defendants' expert. Defendants attached the affidavit and report of their expert, Kelley Adamson, in addition to the deposition testimony of both plaintiffs and the investigating officer.
On November 4, 2021, plaintiffs produced their witness list to defendants, listing James Pittman as their accident reconstruction expert, and also filed an unopposed motion to continue plaintiffs' expert report deadline, which had been previously set by scheduling order to be due by November 5, 2021. The trial court signed an order granting plaintiffs' motion and extending the deadline for production of plaintiffs' expert reports on November 12, 2021.
Thereafter, defendants filed a motion to strike plaintiffs' expert witness, Pittman, for failure to provide disclosures required by the trial court's scheduling orders, the trial court's November 12, 2021 order on plaintiffs' unopposed motion to continue plaintiffs' expert report deadline, and La. C.C.P. arts. 1425 and 1551.
Plaintiffs subsequently filed their opposition to defendants' motion for summary judgment, asserting genuine issues of material fact existed as to how the accident occurred and further, that as evidenced by their previously filed witness and exhibit list, they had retained an expert in accident reconstruction, Pittman. Plaintiffs attached a copy of their witness and exhibit list and a copy of Pittman's expert report to their opposition.
On February 15, 2022, defendants filed a reply memorandum asserting that plaintiffs had failed to come forward with admissible evidence in opposition to defendants' motion for summary judgment. Particularly, they objected to Pittman's report, which was attached as an exhibit to plaintiffs' opposition without an accompanying affidavit, as impermissible under La. C.C.P. art. 966(A)(4) and (D)(2).
Following a February 24, 2022, hearing, the trial court signed a judgment denying defendants' motion to strike but ordering that defendants were entitled to depose Pittman at plaintiffs' cost. Defendants thereafter filed a re-urged motion to strike and motion in limine to exclude the opinions and testimony of Pittman, urging that the court grant the motion to strike Pittman's report as untimely and moved the court to exclude Pittman as a witness because his opinions and testimony are unreliable and based on insufficient facts or data.
The trial court subsequently held a hearing on defendants' re-urged motion to strike and motion in limine and defendants' motion for summary judgment. At the beginning of the hearing, the trial court considered defendants' re-urged motion to strike and motion in limine as well as defendants' objection to Pittman's report, which was submitted in opposition to the motion for summary judgment. The trial court sustained the objection to Pittman's report, because the report did not fall within the exclusive list of La. C.C.P. art. 966(A)(4) and was not properly authenticated or attached to an affidavit. However, the trial court denied defendants' re-urged motion to strike and motion in limine. After finding that the only evidence offered in opposition to the motion for summary judgment was a witness and exhibit list, the trial court ruled in favor of defendants, granting summary judgment in their favor. Following the hearing, the trial court signed a judgment on July 12, 2022, denying defendants' re-urged motion to strike and motion in limine, granting defendants' motion for summary judgment, and dismissing plaintiffs' claims with prejudice.
Plaintiffs now appeal from the trial court's judgment. Defendants have also filed an answer to the appeal, asserting that the trial court abused its discretion in denying their re-urged motion in limine.
Defendants do not contest the trial court's ruling on their re-urged motion to strike.
DISCUSSION
Motion for Summary Judgment
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). An issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Methvien v. Our Lady of the Lake Hospital, 22-0398, p. 4 (La.App. 1st Cir. 11/4/22), 354 So.3d 720, 723.
The initial burden of proof is on the party filing the motion for summary judgment. La. C.C.P. art. 966(D)(1). The mover may meet this burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with the motion for summary judgment. La. C.C.P. art. 966(A)(4). The mover's supporting documentary evidence must prove the essential facts necessary to carry its burden. See La. C.C.P. art. 966(A)(3).
Once the mover properly establishes the material facts by its supporting documents, the mover does not have to negate all of the essential elements of the adverse party's claims, actions, or defenses if the mover will not bear the burden of proof at trial. La. C.C.P. art. 966(D)(1); Methvien, 22-0398 at p. 5, 354 So.3d at 723. Rather, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. La. C.C.P. art. 966(D)(1). The burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to his or her opposition, which establishes the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1); see also La. C.C.P. art. 966, Comments-2015, comment (j). If the nonmoving party fails to produce factual support in opposition sufficient to establish that he or she will be able to satisfy his or her evidentiary burden of proof at trial, La. C.C.P. art. 966(D)(1) mandates the granting of the motion for summary judgment. Babin v. Winn-Dixie Louisiana, Inc., 00-0078, p. 4 (La. 6/30/00), 764 So.2d 37, 40; Jenkins v. Hernandez, 19-0874, p. 5 (La.App. 1st Cir. 6/3/20), 305 So.3d 365, 371, writ denied, 20-00835 (La. 10/20/20), 303 So.3d 315.
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that governs the trial court's determination of whether summary judgment is appropriate. Succession of Hickman v. State Through Board of Supervisors of Louisiana State University Agricultural and Mechanical College, 16-1069, p. 5 (La.App. 1st Cir. 4/12/17), 217 So.3d 1240, 1244. When deciding whether to grant or deny a motion for summary judgment, the trial court cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence. Chevis v. Rivera, 21-0124, pp. 4-5 (La.App. 1st Cir. 9/24/21), 329 So.3d 831, 834, writ denied, 21-01546 (La. 12/21/21), 330 So.3d 317. Furthermore, the court must assume that all of the witnesses are credible. Sanders v. Swiftships, Inc., 17-0774, p. 8 (La.App. 1st Cir. 9/20/18), 2018WL4520091 *4, writ denied, 18-1912 (La. 1/18/19), 262 So.3d 289. Any doubt as to a dispute regarding a genuine issue of material fact must be resolved against granting the motion and in favor of a trial on the merits. Chevis, 21-0124 at p. 5, 329 So.3d at 834-835.
In the instant case, defendants filed a motion for summary judgment asserting that plaintiffs cannot meet their burden of establishing that the accident at issue was caused by the negligence of defendants. In particular, defendants asserted that the testimony of their retained accident reconstruction expert established that the accident could not have occurred the way plaintiffs state that it did and plaintiffs could have and should have taken evasive measures to avoid the accident. In support of their motion, defendants submitted: the affidavit and report of their retained expert, Kelley Adamson; the deposition testimony of White and Smith; and the deposition testimony of Trooper Jacob Long, the officer who investigated the accident. Defendants assert that the evidence they submitted demonstrates that reasonable persons could reach only one conclusion: that taking either plaintiffs testimony as true, the accident could not have occurred how or where they claimed and the damage, more likely than not pre-existing, does not match the dimensions of the trailer.
From our review of the evidence in the record, we disagree with defendants' assertion that reasonable persons could reach only one conclusion. White presented a version of the accident in his deposition testimony, stating that he was traveling in the middle lane of Interstate 12 when he saw Hebert driving in the right lane through his passenger side mirror and then Hebert came over into the middle lane and hit White, causing White to "jet over" into the left lane. White stated that it all happened very fast, and by the time he saw Hebert, he did not have time to slow down and he did not want to slam on his brakes because there was a vehicle traveling behind him. White further stated that he could not get over into another lane because there were other vehicles in those lanes. After the impact, White stated that he and another vehicle chased down Hebert and honked their horns at him until Hebert pulled over. Once Hebert pulled over, White informed Hebert that Hebert had hit him and when Hebert denied seeing or hitting White, White called 911. White said he observed scratches to Hebert's trailer and light silver paint transfer, which he believed to be from hitting his vehicle, and his vehicle sustained damage to the front, passenger side, including damage to the fender, bumper, rim and engine.
Smith's deposition was also submitted by the defendants, but all parties acknowledge that Smith was asleep at the time of the accident and therefore, he had no personal knowledge as to how the accident occurred.
Trooper Long, who investigated the accident, stated in his deposition testimony that there was no evidence to state that the accident was staged or fake, and he determined the primary factor in causing the accident was violations, including improper lane usage by Hebert, but he did not issue any citations, probably because the damage was minor. Trooper Long stated that he had investigated hundreds of motor vehicle accidents, with thirty to forty percent of those involving 18-wheelers. Trooper Long stated that he did not see any damage to Hebert's vehicle other than a minute scratch to the trailer and there was minor front, right damage to White's vehicle. Trooper Long stated that the damage to White's vehicle was consistent with damage he would expect to see when a passenger vehicle is in an accident with an 18-wheeler. During his deposition, Trooper Long was presented with a Carfax report indicating that White's vehicle was involved in several prior accidents. Trooper Long stated that he was unaware of any prior accidents at the time he investigated the accident at issue, but even after being made aware of that information, he still thought it was reasonable that the damage to White's vehicle was caused by the February 2018 accident. However, Trooper Long did acknowledge that it was reasonable to believe, with this new information, that there may have been pre-existing damage prior to the February 2018 accident as well. He stated that he could not know for sure without knowing if the prior damage had been repaired before the February 2018 accident.
Adamson, defendants' accident reconstruction expert, disputed White's version of events, stating that it was not possible. Adamson stated that his analysis indicates this was a low-speed collision with resulting low forces to White's vehicle and its occupants, and White could have avoided the collision by simply changing lanes. Adamson further stated that the damage to White's vehicle was inconsistent with the height of the rear of Hebert's trailer. Adamson further stated that the collision scenario present in the instant case is similar to fraud cases in the New Orleans area.
The evidence offered by defendants in support of their motion presents conflicting testimony and opinions as to the events surrounding the accident at issue as well as the resulting damage caused to White's vehicle. Defendants, however, essentially argue that the testimony of their expert is more credible than that of the plaintiffs or the investigating officer and is sufficient to meet their burden in seeking summary judgment and shift the burden to plaintiffs, who defendants argue, must produce testimony from an accident reconstruction expert in order to defeat defendants' motion. First, we note that a court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Harris v. State ex rel. Department of Transportation and Development, 07-1566, p. 25 (La.App. 1st Cir. 11/10/08), 997 So.2d 849, 866, writ denied, 08-2886 (La. 2/6/09), 999 So.2d 785. Additionally, in reviewing a motion for summary judgment, courts cannot make credibility determinations, evaluate testimony, or weigh conflicting evidence. Chevis, 21-0124 at pp. 4-5, 329 So.3d at 834. Therefore, we find that given the conflict in the evidence presented by defendants, which necessarily requires weighing evidence and determining the credibility of witnesses, defendants failed to meet their initial burden in seeking summary judgment. As such, we find that trial court erred in granting summary judgment in favor of defendants and in dismissing plaintiffs' claims.
Motion in Limine
In their answer to the appeal, defendants assert that the trial court abused its discretion in denying their re-urged motion in limine seeking to exclude the testimony of plaintiffs' expert, James Pittman. Specifically, defendants alleged that Pittman's testimony should be excluded because Pittman did not follow his own methodology when he failed to review the Carfax report or the deposition testimony of Trooper Long.
A trial court has great discretion in its consideration of evidentiary matters such as motions in limine. Maldonado v. Kiewit Louisiana Co., 12-1868, p. 14 (La.App. 1st Cir. 5/30/14), 152 So.3d 909, 922, writ denied, 14-2246 (La. 1/16/15), 157 So.3d 1129. On review, an appellate court must determine whether the trial court abused its great discretion in ruling on a motion in limine. Davis-Lynch Holding Company, Inc, v. Robinson, 19-1574, p. 7 (La.App. 1st Cir. 12/30/20), 316 So.3d 1126, 1131.
Louisiana Code of Evidence article 702(A) provides:
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:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.
In the instant case, the trial court found, after reviewing Pittman's deposition, that while Pittman did not review the Carfax report or Trooper Long's deposition testimony, he did review Trooper Long's incident report, both plaintiffs' depositions, Hebert's deposition, Google Earth, Adamson's report, and a commercial driver's license manual. The trial court further found that according to Pittman's testimony, the Carfax report was not necessary to his methodology. Additionally, the trial court found that while Pittman stated he likes to have everyone's deposition testimony, it is not always available. As such, the trial court found that it is not always necessary to Pittman's methodology. However, the trial court did note a conflict in Pittman's testimony upon examination by defense counsel where Pittman indicated that if a deposition is taken, he has to have that deposition to review. Despite this conflict, the trial court found that Pittman's methodology was not so violated or flawed, considering his entire deposition and the items he reviewed, as to say he did not have sufficient facts or data to form an opinion.
From our review of the record, we fail to find that the trial court abused its great discretion in denying defendants' re-urged motion in limine.
CONCLUSION
For the foregoing reasons, we reverse the portion of the trial court's judgment granting summary judgment in favor of defendants and dismissing plaintiffs' claims against them with prejudice and affirm the portion of the trial court's judgment denying defendants' re-urged motion to strike and motion in limine. This matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to defendants, Preston Hebert, B's Productions, LLC, and Hallmark Specialty Insurance Company.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.