Opinion
NO. 2015 CA 0104
09-18-2015
LINDA WILLIAMS AND HUSTON WILLIAMS v. DEREK HENDRY, STATE FARM INSURANCE COMPANY, AND LIBERTY MUTUAL INSURANCE COMPANY
GAIL N. MCKAY BATON ROUGE, LA ATTORNEY FOR PLAINTIFF-APPELLANT LINDA WILLIAMS H. MINOR PIPES, III KRISTIN L. BECKMAN NEW ORLEANS, LA ATTORNEYS FOR DEFENDANT-APPELLEE LIBERTY MUTUAL INSURANCE COMPANY
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana
Trial Court No. C579807
Honorable R. Michael Caldwell, Judge
GAIL N. MCKAY
BATON ROUGE, LA
ATTORNEY FOR
PLAINTIFF-APPELLANT
LINDA WILLIAMS
H. MINOR PIPES, III
KRISTIN L. BECKMAN
NEW ORLEANS, LA
ATTORNEYS FOR
DEFENDANT-APPELLEE
LIBERTY MUTUAL INSURANCE
COMPANY
BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. PETTIGREW, J.
Plaintiff appeals from the trial court's September 24, 2014 judgment rendered in her favor and in accordance with the jury's verdict, awarding her damages for personal injuries sustained in an automobile accident on July 28, 2008. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
According to the record, from 1970 to 2008, plaintiff, Linda Williams, was involved in six separate motor vehicle accidents, several of which resulted in Mrs. Williams filing suit to recover damages. Because of injuries sustained in these prior accidents, Mrs. Williams began suffering from chronic pain in the late 1990s. The extensive medical evidence in the record presented a clear picture of Mrs. Williams' medical history leading up to the accident at issue in the present case, as well as her condition at the time of the trial of this matter.
Following an accident in the 1970s, Mrs. Williams underwent a carpal tunnel release surgery on her right hand. She also sustained bruising and suffered from body aches and pains as a result of that accident. The next reference to injuries sustained by Mrs. Williams related to a 1994 accident. Mrs. Williams testified that she injured her lower back and neck in the 1994 accident and sought medical treatment, including physical therapy.
Mrs. Williams indicated that five years later, the pain from those injuries was still ongoing. It was at that time that she began treating with Dr. Gregory Ward. In a questionnaire Mrs. Williams filled out at Dr. Ward's office, she described her pain as occasional but very severe, lasting 36 to 48 hours per month. When asked what made the pain better, Mrs. Williams answered, "rest, heating pad, neck collar." Mrs. Williams further described her pain at that time as deep aches on both sides of her neck and a feeling of pins and needles in both shoulders. She also indicated she had numbness in her right arm and hand and stiffness of fingers. Mrs. Williams explained further:
This pain has been in the neck area since the auto accident. ... [S]ince Jan. '99 it has increased to occurring maybe every two weeks. In the past it would [flare] up 3-4 times a year and I would go to physical therapy. The pain has begun to affect my ability to drive, thinking and writing.
In April 2001, Mrs. Williams saw Dr. Ward with lingering complaints of low back pain causing tingling and numbness in her feet. She also complained of cervical pain, which caused tingling and numbness associated with burning in her hands and fingers. Mrs. Williams explained to Dr. Ward that the pain was always there and that she was not able to rest because of the pain.
Mrs. Williams was involved in another accident in March 2004. She saw Dr. Ward in October 2004 and reported injuries to her back and neck. Mrs. Williams also complained of severe left leg pain, with pain under the bottom of her left foot and severe bilateral knee pain. Dr. Ward's progress notes from the October 2004 visit indicate that Mrs. Williams' lower back pain was ongoing since July 2004. Following the 2004 accident, Mrs. Williams underwent extensive treatment, including physical therapy and injections, for her neck, back, both shoulders, and both knees.
Mrs. Williams' next accident was in January 2006. Following this accident, she saw Dr. William Cherry with complaints of headaches and pain in her neck, shoulders, chest, right breast, back, and anterior thigh. Mrs. Williams saw Dr. Cherry on two other occasions after the 2006 accident, continuing with pain in her neck, back, and both shoulders.
During the time that Mrs. Williams was treating with Dr. Cherry, she was also still seeing Dr. Ward. In February 2006, she reported to Dr. Ward that she was experiencing neck pain and bilateral shoulder discomfort. Dr. Ward related the cervical neck pain to the whiplash injury sustained in the 2006 accident. In March 2006, Mrs. Williams indicated she had a new neck pain that had started February 10, 2006. She described the pain as starting in the back of her neck and radiating down to her fingers. Dr. Ward's March 2006 progress note continued as follows:
Would recommend a course of physical therapy treatment, strengthening, injections if necessary. She had a motor vehicle accident back on January 16, 2006. From that she had a whiplash injury, some discomfort in bilateral hand numbness, low back pain. She had a previous event back in 1999
from which she completely recovered from what it sounds, but this seems to have gotten worse since this.
Recommend pain management. She had some mild numbness but strength is unimpaired. She did have a flare up in the neck and shoulder at this time. Recommend treatment strategies for her.
Mrs. Williams continued treating with Dr. Ward. In June 2006, Mrs. Williams had complaints of pain in her left knee, low back, and the big toe on her right foot. She indicated a pain level of 5 out of 10. In July 2006, Mrs. Williams reported increased low back pain and underwent a series of trigger point injections to the cervical spine region. Dr. Ward also administered a cortisone injection into the L5-S1 paraspinal muscle group.
Mrs. Williams was in another accident in July 2007. Following this accident, she spent the night in the emergency room of Baton Rouge General Hospital with complaints of neck and posterior thorax pain, overall body aches, and knee pain. Mrs. Williams returned to see Dr. Ward on August 8, 2007, complaining of pain in her neck, lower back, lower shoulders, and both knees. She had a pain level of 6 out of 10. Dr. Ward referred Mrs. Williams to Dr. Damon Butler for chiropractic treatment.
According to Dr. Butler's records, he treated Mrs. Williams for cervical spine pain, lumbar spine pain, and bilateral knee pain. In a patient information form that Mrs. Williams filled out for her treatment with Dr. Butler, she described her pain as sharp, throbbing, aching, and shooting. She further indicated that the pain in her knees and neck was constant, whereas the pain in her back would come and go. Mrs. Williams added that the pain interfered with her work, sleep, daily routine, and recreation. When asked to mark the areas where she felt pain, Mrs. Williams marked her neck, both shoulders, low back, both knees, her right arm, her right leg, and her right hip. She rated her "Neck-Shoulder-Arm Pain" level as a 10 out of 10. Her "Mid Back Pain" was an 8 out of 10. And her "Low Back and Leg Pain" rated a 10 out of 10.
Mrs. Williams continued treating with Dr. Ward. In November 2007, Mrs. Williams also began treating with Dr. Ayman Hamed at Ochsner Clinic of Baton Rouge. She reported to Dr. Hamed with worsening neck and shoulder symptoms. Around that same time, Mrs. Williams continued to complain to Dr. Ward of right radicular pain and right arm tingling into the C6 region. Over the next months, Mrs. Williams' pain persisted, and she was treated by both Dr. Ward and Dr. Hamed for chronic neck and shoulder issues.
Mrs. Williams explained that when her pain got out of control, her doctors would administer epidural steroid injections to help lessen her pain. She even underwent a nerve root block in January 2008, after which she reported a 40 percent improvement in her symptoms. However, even with the improvement in her symptoms, her pain level stayed at a 6 out of 10 during this time. It was not until March 2008 that Mrs. Williams reported a lower pain level of 3 to 4 out of 10 to Dr. Hamed. However, even at that time, Mrs. Williams was still complaining of neck and shoulder pain radiating to the right arm with intermittent numbness, tingling, and sharp shooting pain down to the right hand.
On June 30, 2008, one month before the accident at issue, Mrs. Williams saw Dr. Ward with complaints of pain in her neck, shoulder, and right knee. She also reported soreness to her right medial thigh and pain behind her knee and in her calf and hamstrings. Dr. Ward also noted at that time that Mrs. Williams had three cervical epidurals done by Dr. Hamed. During that visit, Mrs. Williams rated her pain at 8 out of 10. Dr. Ward's impression was as follows: "Neck pain and low back pain with cervical and lumbar spondylosis, mild lumbar disc bulges."
Mrs. Williams saw Dr. Ward again on the morning of the July 28, 2008 accident. She was still complaining of neck, shoulder, and right knee pain, but her pain level had gone from an 8 to a 5.
One of the central issues before the jury below was Mrs. Williams' physical condition at the time of the July 28, 2008 accident and what, if any, exacerbation of her preexisting conditions was caused by this accident. On the date of the accident in question, Mrs. Williams was driving a 1998 Mercedes ML320 in an easterly direction on Perkins Road, in East Baton Rouge Parish. At the same time, Derek Hendry, who was operating a 1994 Toyota Camry, was traveling west on Perkins Road and turned in front of Mrs. Williams' vehicle, resulting in a collision between the two vehicles.
Mrs. Williams suffered injuries to her neck, shoulder, back, and knees and was treated by Dr. F. Allen Johnston beginning in August 2008. Dr. Johnston diagnosed Mrs. Williams with a cervical strain (with spasm underlying cervical spondylosis), right arm radiculopathy, left shoulder strain with impingement, bilateral knee strains, and low back strain. At the time of the trial of this matter, Mrs. Williams had been treating with Dr. Johnston for a period of six years with epidural injections in her low back, cortisone shots in her left shoulder and knees, and physical therapy, all on an as-needed basis.
As a result of the injuries sustained in the accident, Mrs. Williams and her husband, Huston Williams (sometimes referred to collectively as "plaintiffs"), filed a petition for damages on June 26, 2009. Named as defendants were Derek Hendry, State Farm Mutual Automobile Insurance Company, in its capacity as liability insurer of the vehicle Hendry was driving, and Liberty Mutual Insurance Company, it its capacity as the Williamses' underinsured motorist ("UM") carrier.
On September 3, 2009, plaintiffs filed a motion seeking to dismiss, with prejudice, their claims against Hendry and State Farm based on a settlement entered into by the parties. The trial court signed the judgment of dismissal on September 8, 2009. Thus, only plaintiffs' claims against Liberty Mutual remained.
Thereafter, Liberty Mutual filed a motion for partial summary judgment claiming that the UM coverage it provided to plaintiffs was limited to $100,000.00 per person. Liberty Mutual further claimed that the personal catastrophe liability policy ("PCLP") it issued to plaintiffs was not triggered until plaintiffs' damages exceed the required $250,000.00 retained limit in the umbrella policy, plus the limits of the tortfeasor's insurance. Therefore, Liberty Mutual sought a judgment that plaintiffs were not entitled to recover any amount between the $100,000.00 UM limit and the $250,000.00 retained limit of the PCLP.
On August 30, 2011, the trial court granted Liberty Mutual's motion for partial summary judgment as prayed for and designated the judgment as final for purposes of appeal. The plaintiffs appealed. Finding that the judgment was improperly certified as final, this court dismissed the appeal. Williams v. Hendry, 2011-2379 (La. App. 1 Cir. 9/21/12) (unpublished opinion).
The matter proceeded to a jury trial on August 18, 2014. At the conclusion of the evidence, the jury rendered a verdict in favor of Mrs. Williams, awarding damages as follows:
| Past Medical Expenses | $5,800.00 |
| Future Medical Expenses | $0 |
| Physical Pain and Suffering,Past and Future | $6,000.00 |
| Mental Suffering and Distress,Past and Future | $1,500.00 |
| Loss of Enjoyment of Life,Past and Future | $1,500.00 |
| TOTAL Damages | $14,800.00 |
|---|
The trial court signed a judgment in conformity with the jury's verdict on September 24, 2014, further ordering as follows:
[B]ecause Liberty Mutual already has tendered $20,000 to plaintiff as an unconditional tender under plaintiff's insurance policy providing underinsured motorist coverage and plaintiff has settled her claims with State Farm, the tortfeasor's insurer, for $25,000, Liberty Mutual is entitled to a credit of $45,000. Accordingly, the judgment is rendered in favor of plaintiff and against defendant subject to a credit for these amounts received, leaving no amount due to plaintiff. As such, judgment is entered in favor of the defendant and all of plaintiff's claims are dismissed with prejudice, with each party to bear their own costs.
It is from this judgment that Mrs. Williams has appealed, assigning the following specifications of error for our review:
1. The trial court improperly denied plaintiff's Batson challenge to defendant's systematic peremptory striking of potential African American women jurors close to plaintiff's age. [Footnote omitted.]
2. The trial court improperly denied plaintiff's motion in limine to exclude from evidence at trial the deposition testimony of expert witness Dr. Curtis Partington given as trial testimony in a completely different accident case than the case on trial, and because of that, not containing any examination of Dr. Partington regarding the injuries caused by the accident at issue in this case. The allowance in evidence of Partington's deposition testimony violated the provisions of Article 1450 of the Code of Civil Procedure and Article 804 of the Code of Evidence. The risk of jury confusion and prejudice outweighed any remote or tangential relevance of such testimony and seriously prejudiced plaintiff.
3. The trial court erred in allowing defendant to enter into evidence and have read to the jury, as the only witness in defendant's case in chief, a deposition of Dr. Gregory Ward taken in an unrelated case which did not
contain any testimony at all regarding the injuries caused by the accident at issue in this case. The allowance in evidence of Ward's deposition testimony violated the provisions of Article 1450 of the Code of Civil Procedure and Article 804 of the Code of Evidence. The testimony was not relevant to the present case and its introduction was confusing to the jury and highly prejudicial to plaintiff.
Article 1450(A)(5) provides as follows:
A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:Louisiana Code of Evidence Article 804(B)(1) provides as follows:
. . . .
(5) However, any party may use the deposition of an expert witness for any purpose upon notice to all counsel of record, any one of whom shall have the right within ten days to object to the deposition, thereby requiring the live testimony of an expert. The objecting counsel of record shall pay in advance the fee, reasonable expenses, and actual costs of such expert witness associated with such live testimony. The fees, expenses, and costs specified in this Subparagraph shall be subject to the approval of the court. The provisions of this Subparagraph do not supersede Subparagraph (A)(3) nor Code of Evidence Article 804(A). However, the court may permit the use of the expert's deposition, notwithstanding the objection of counsel to the use of that deposition, if the court finds that, under the circumstances, justice so requires.
B. Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of this state, or the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
C. Conflicts between this Article and Code of Evidence Article 804, regarding the use of depositions, shall be resolved by the court in its discretion.
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.
Article 1450(A)(5) provides as follows:
A. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the Louisiana Code of Evidence applied as though the witnesses were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:Louisiana Code of Evidence Article 804(B)(1) provides as follows:
. . . .
(5) However, any party may use the deposition of an expert witness for any purpose upon notice to all counsel of record, any one of whom shall have the right within ten days to object to the deposition, thereby requiring the live testimony of an expert. The objecting counsel of record shall pay in advance the fee, reasonable expenses, and actual costs of such expert witness associated with such live testimony. The fees, expenses, and costs specified in this Subparagraph shall be subject to the approval of the court. The provisions of this Subparagraph do not supersede Subparagraph (A)(3) nor Code of Evidence Article 804(A). However, the court may permit the use of the expert's deposition, notwithstanding the objection of counsel to the use of that deposition, if the court finds that, under the circumstances, justice so requires.
B. Substitution of parties does not affect the right to use depositions previously taken; and, when an action in any court of this state, or the United States or of any state has been dismissed and another action involving the same subject matter is afterward brought between the same parties or their representatives or successors in interest, all depositions lawfully taken and duly filed in the former action may be used in the latter as if originally taken therefor.
C. Conflicts between this Article and Code of Evidence Article 804, regarding the use of depositions, shall be resolved by the court in its discretion.
B. Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.
EVIDENTIARY RULINGS
(Assignments of Error Numbers Two and Three)
In these assignments, Mrs. Williams contends the trial court made two erroneous evidentiary rulings. If a trial court commits evidentiary error that interdicts its fact-finding process, this court must conduct a de novo review. Thus, any alleged evidentiary errors must be addressed first on appeal, inasmuch as a finding of error may affect the applicable standard of review. See Bolton v. B E & K Const., 2001-0486, p. 3 (La. App. 1 Cir. 6/21/02), 822 So.2d 29, 32.
Mrs. Williams asserts that the trial court committed iegal error in: (1) denying her motion in limine to exclude from evidence the video deposition of Dr. Curtis Partington; and (2) allowing Liberty Mutual to introduce into evidence and have read to the jury the deposition of Dr. Gregory Ward.
We note that the motion in limine does not appear in the record before us. Mrs. Williams attached a copy of the motion, as well as the memorandum in support thereof, to her appellate brief and indicated that a request for supplementation of the record was being addressed to the district court below. However, no such supplement exists in the record before us. It is well settled that appellate briefs and any exhibits attached thereto do not form part of the record on appeal. Augustus v. St. Mary Parish School Bd., 95-2498, p. 16 (La. App. 1 Cir. 6/28/96), 676 So.2d 1144, 1156. Nonetheless, we find this issue ripe for review, as it is clear from the record before us that the trial court considered the motion in limine. At the outset of the trial on August 19, 2014, the trial court made the following statement to all counsel present: "All our jurors are here, so let's move quickly on the motion in limine. I have read the depositions. Any additional arguments you wish to make ...?" Thereafter, the trial court heard arguments from respective counsel and denied the motion in limine as it related to Dr. Partington's video deposition. The motion in limine as it related to the deposition of Dr. Ayman Hamed was referred to the merits and later granted by the trial court.
Louisiana Code of Evidence article 103(A) provides, in part, that "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected[.]" The proper inquiry for determining whether a party was prejudiced by a trial court's alleged erroneous ruling on the admission or denial of evidence is whether the alleged error, when compared to the entire record, had a substantial effect on the outcome of the case. If the effect on the outcome of the case is not substantial, reversal is not warranted. La. Code Evid. art. 103(A). The party alleging prejudice by the evidentiary ruling of the trial court bears the burden of so proving. See Emery v. Owens-Corporation, 2000-2144, p. 7 (La. App. 1 Cir. 11/9/01), 813 So.2d 441, 449, writ denied, 2002-0635 (La. 5/10/02), 815 So.2d 842. Generally, the trial court is granted broad discretion in its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Turner v. Ostrowe, 2001-1935, p. 5 (La. App. 1 Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied, 2002-2940 (La. 2/7/03), 836 So.2d 107.
Evidentiary Ruling No. 1
Mrs. Williams contends the trial court erred in admitting into evidence the video deposition of Dr. Partington. Mrs. Williams filed a motion in limine to exclude the deposition, which was denied. Mrs. Williams noted her objection for purposes of appeal.
Mrs. Williams argues that Dr. Partington's deposition focused on the 2007 accident, not the July 28, 2008 accident at issue in this case. Noting that the deposition did not contain any examination of Dr. Partington regarding the injuries caused by the July 28, 2008 accident, Mrs. Williams maintains that the admission into evidence of Dr. Partington's video deposition violated the provisions of La. Code Civ. P. art 1450 and that the risk of jury confusion and prejudice outweighed any relevance of such testimony.
In response Liberty Mutual, argues that Dr. Partington's video deposition was relevant to the issue of causation and was admissible pursuant to La. Code Civ. P. art. 1450(A)(5) and La. Code Evid. art. 804(B)(1). Agreeing with Liberty Mutual, the trial court found Dr. Partington's video deposition to be "relevant to this suit because of the review of the diagnostic procedures that were done after this 2008 accident." The trial court further found that Dr. Partington's deposition was properly noticed.
Later during her case-in-chief, Mrs. Williams called Dr. Partington as a witness by video deposition. A bench conference was held on the record as follows:
[COUNSEL FOR MRS. WILLIAMS:] Again, we just want this on the record. We are objecting to Partington going in at all, but I'm calling him in my case-in-chief under objection since the court has ruled that he's going in. But I still want it on the record that we are objecting to this deposition.
[COUNSEL FOR LIBERTY MUTUAL:] Your Honor, I don't know if you can reserve an objection and then call him.
THE COURT: You're vouching for him as your witness.
[COUNSEL FOR MRS. WILLIAMS:] No, I'm not.
THE COURT: Yes, you are. You are calling him.
[COUNSEL FOR MRS. WILLIAMS:] But I'm stiil lodging my objection.
THE COURT: You can lodge your objection, and if the court of appeal decides you can reserve it on appeal, that's fine. That's fine. You're on the record.
[COUNSEL FOR MRS. WILLIAMS:] I've already noted [my objection] earlier through [the] motion in limine. I'm just reurging it.
THE COURT: That's fine. I've already ruled.
Mrs. Williams now contends that La. Code Civ. P. art. 1450 only allows for the introduction of depositions taken in another proceeding when the instant proceeding is between the same parties and involves the same subject matter. She further maintains that even if a deposition such as Dr. Partington's could pass muster under La, Code Civ. P. art. 1450, it would still have to be admissible under the evidentiary hearsay rules. And, Mrs. Williams notes, pursuant to La. Code Evid. art. 804(B)(1), Dr. Partington's testimony would not be admissible in this case as she contends it is "testimony given in another proceeding by an expert witness in the form of opinions or inferences." Liberty Mutual asserts that Mrs. Williams waived any objection she may have had to the introduction of Dr. Partington's testimony when she played the video deposition for the jury during her case-in-chief.
Evidentiary Ruling No. 2
Mrs. Williams argues on appeal that the trial court abused its discretion in allowing Liberty Mutual to introduce into evidence Dr. Ward's deposition, which was taken in connection with another case and did not include any testimony regarding the July 28, 2008 accident. Moreover, Mrs. Williams contends that Liberty Mutual was allowed to do so with no notice of intent to use the deposition as required by La. Code Civ. P. art. 1450(A)(5). Instead, Mrs. Williams posits, the trial court used a late night email (between her attorney and the attorney for Liberty Mutual) containing a reference to Dr. Ward's deposition as justification for allowing the introduction of Dr. Ward's deposition into evidence.
In response, Liberty Mutual asserts that both parties had listed Dr. Ward as a witness on the pretrial order, that Mrs. Williams' attorney had provided notice of intent to introduce Dr. Ward's deposition at trial in lieu of live testimony, that Liberty Mutual provided Mrs. Williams with deposition designations from Dr. Ward's deposition, and that during a pretrial conference, Liberty Mutual told Mrs. Williams and the trial court that it intended to introduce Dr. Ward's deposition. Liberty Mutual further notes that Mrs. Williams' choice to notice the use of Dr. Ward's deposition should function as a waiver of any objection she may now have to its admissibility. Moreover, Liberty Mutual maintains that Dr. Ward's deposition was admissible pursuant to La. Code Civ, P„ art. 1450(A)(5) and La. Code Evid. art. 804(B)(1).
According to the record, towards the end of Mrs. Williams' case-in-chief, there was a discussion about Dr. Ward's deposition as follows:
THE COURT: Is Dr. Ward coming live?
[COUNSEL FOR LIBERTY MUTUAL]: No, we have a deposition.
THE COURT: How long is his deposition?
[COUNSEL FOR LIBERTY MUTUAL]: It's only about an hour, maybe 45 minutes.
THE COURT: But you're not calling Dr. Ward, they're calling him.
[COUNSEL FOR MRS. WILLIAMS]: No, sir.
THE COURT: You don't have any other fact witnesses? You are not going to call the husband?
[COUNSEL FOR MRS. WILLIAMS]: I was going to call him. That's probably going to be 10 or 15 minutes. I can call him today if you would like. But, you know, with Dr. Ward and stuff, we never noticed his depo -- I know you say it's on the -- that was a discovery deposition in an earlier case. It had nothing to do -- the only reason we put, I wrote a letter to them saying we may call him in light of the fact that they had noticed Dr. Hamed. I just wanted that there, to preserve on the ten-day rule. But I had no intention of calling Dr. Ward in my case.
[COUNSEL FOR LIBERTY MUTUAL]: Your Honor, first of all, I guess we'd want an adverse presumption if he's not calling the treating physician. He treated her for this accident as well and ten years leading to it. But we have a right to call him, and we are going to call him.
[COUNSEL FOR MRS. WILLIAMS]: Bring him live so we can all talk to him, not from a deposition taken in another accident.
[COUNSEL FOR LIBERTY MUTUAL]: Your Honor, we have a right to designate his deposition.
[COUNSEL FOR MRS. WILLIAMS]: You didn't notice it. You never noticed it.
[COUNSEL FOR LIBERTY MUTUAL]: We designated it. We told you exactly what we were going to read in.
[COUNSEL FOR MRS. WILLIAMS]: No, but you didn't send me notice of your intent to use the deposition. You did that in response to me writing a letter to you after the fact, after the ten days saying that you may, the designation was after the ten-day rule. The only reason I wrote that e-mail --
[COUNSEL FOR LIBERTY MUTUAL]: Your Honor, as we understand --
THE COURT: Wait a minute. Let him finish, and don't talk to him. You talk to me.
[COUNSEL FOR MRS. WILLIAMS]: Yes, sir. They sent me, on the very last day of the ten-day rule under Article 1450 of their intent to use the deposition of Dr. Hamed, who only saw her for the 2007 accident As you've seen, Dr. Partington basically talked about the 2007 accident as well. And it was only at 10:00 at night on that night that I just, out of, you know, precaution, because I didn't think that Dr. Hamed's deposition was admissible. I thought well, if they are going to call Dr. Hamed, I better at least say in light of that, if the judge is going to rule that Dr. Hamed's deposition is going in, I want the right to call Dr. Ward in that case. I never said I was going to use him, that was the only reason I wrote that one sentence e-mail to them in response to a notice I got at 5:00 or 6:00 on the last day, that Friday of the ten-day rule. That's the only reason I did that. And they never sent me a notice saying they were going to use Dr. Ward. And then after that, last week, I get these designations, which is past the ten-day time period.
THE COURT: All right. Let me see what notices y'all sent to each other and what you are talking about. ...
[COUNSEL FOR LIBERTY MUTUAL]: Your Honor, let me, just for the record, and I'll hand them to you. On the 8th at 11:02 p.m., which is a Friday, he said he was going to call Dr. Ward by deposition.
THE COURT: August 8?
[COUNSEL FOR LIBERTY MUTUAL]: August the 8th. Monday we responded and asked him to agree to do designations for whatever depositions were called. We sent him a follow up e-mail on the 13th .... He responded on the 13th and said yes, we can exchange designations on Thursday. We sent him our designations on Thursday, including Dr. Ward". No response. Numerous e-mails after that, no response. When we showed up in court yesterday, [counsel for Mrs. Williams] said [he] didn't have time to do designations, [so he was] just putting the whole depositions in. And now, we're in the middle of trial.
. . . .
THE COURT: ... I think you have put each other and me and this jury in a really bad position, but it's my job to try to resolve those- The notice for Dr. Hamed did come late. It is somewhat unusual to use a deposition taken for another trial, even though it involved the same parties in the pending trial. But the fact is, [counsel for Mrs. Williams], when you sent this on August 8 at 11:02 p.m. - and I can understand your predicament
-- you did entitle it notice of intent to introduce deposition at trial in lieu of live testimony. I mean, you went to, for you, a good point in making it a formai notice of intent had you intended to introduce the deposition of Dr. Ward. ... Obviously, this notice, whatever it was, led the defendants to believe that Dr. Ward's deposition would be used. It was discussed in chambers Monday afternoon before we came in to pick the jury as to what witnesses were going to be called. Frankly, [counsel for Mrs. Williams], I may be incorrect. I thought I recalled you saying you didn't know whether you were going to call Dr. Ward or not. You may have been waiting on my ruling on Dr. Hamed, but you didn't indicate whether you were going to call him or not. They said they were calling him. All of this about designating him and so forth, or giving proper notice, came up later. I think that's been the problem. Everything keeps coming up at the last minute. ... I understand the predicament you were in ... but based on this notice I am going to allow the deposition of Dr. Ward.
At the start of the next day of trial, counsel for Mrs. Williams introduced various exhibits into evidence, one of which was Dr. Ward's deposition. Mrs. Williams' case-in-chief then concluded with in-court testimony from Mr. Williams and the reading of Dr. Johnson's deposition. Thereafter, counsel for Mrs. Williams again questioned the admissibility of Dr. Ward's deposition and the following colloquy occurred:
[COUNSEL FOR MRS. WILLIAMS]: Your Honor, as far as this deposition is concerned, that was a case I wasn't involved in, so I'm not in that.
THE COURT: All right. The reason it came in was because you said you might use it. What do you mean it was a case you weren't involved in?
[COUNSEL FOR MRS. WILLIAMS]: This was a case --
THE COURT: In which case was it taken?
[COUNSEL FOR MRS. WILLIAMS]: This is in the 2006 accident. That's what I'm telling you. I wasn't even representing her. I had nothing to do with that deposition.
THE COURT: Was there any questioning by plaintiff's counsel in there?
[COUNSEL FOR LIBERTY MUTUAL]: There was, Your Honor. There was questioning on both sides, yes. Ms. Williams was represented, and I have asked [counsel for Mrs. Williams] if he would read the other side. He refused, and I have been told I need to read the whole thing from front to back, and I'm prepared to do that.
[COUNSEL FOR MRS. WILLIAMS]: This was a 2006 accident. It had nothing to do with any case I represented her on.
THE COURT: You know, if y'all would raise these things ahead of time, it would make my life a lot easier. But that's okay, I don't need to have my life made easier. That's fine. All right. Somebody is going to read ... the part of the other attorney, and I will explain that she was represented by a different attorney at the time ....
. . . .
[COUNSEL FOR MRS. WILLIAMS]: Just for the record, I still object to it going in.
THE COURT: I know.
[COUNSEL FOR LIBERTY MUTUAL]: Although just for the record, he did already put it into evidence.
THE COURT: I know.
[COUNSEL FOR MRS. WILLIAMS]: For appeal purposes, not for any other purposes. Thank you, Your Honor.
A review of the record reveals the following email from counsel for Mrs. Williams to counsel for Liberty Mutual dated August 8, 2014:
Notice of Intent to Introduce Deposition at Trial in Lieu of Live Testimony:In a separate email dated August 13, 2014, counsel for Mrs. Williams indicated his agreement to exchange deposition designations with counsel for Liberty Mutual on the following day. However, only Liberty Mutual's deposition designations appear in the record.
In light of the notice received today that you intend to introduce in evidence at trial the deposition of Dr. Ahmad as well as the deposition of Dr. Partington, notice is hereby given that plaintiff may introduce at trial all or a portion of the deposition of Dr. Gregory Ward.
Applicable Law
Generally, all relevant evidence is admissible. La. Code Evid. 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 probable or less probable than it would be without the evidence. La. Code Evid. art. 401. Relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time." La. Code Evid. art. 403. Whether evidence is relevant and admissible 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 discretion. Boudreaux v. Mid-Continent Cas. Co., 2005-2453, p. 8 (La. App. 1 Cir. 11/3/06), 950 So.2d 839, 845, writ denied, 2006-2775 (La. 1/26/07), 948 So.2d 171.
"Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." La. Code Evid. art. 103(A). The harmless error analysis applies to erroneous evidentiary rulings on appeal. Travis v. Spitale's Bar, Inc., 2012-1366, p. 8 (La. App. 1 Cir. 8/14/13), 122 So.3d 1118, 1127, writs denied, 2013-2409, 2013-2447 (La. 1/10/14), 130 So.3d 327, 329. Moreover, where evidence is admitted that is merely cumulative of other evidence in the record, any error in its admission is harmless. Finch v. ATC/Vancom Management Services Ltd. Partnership, 2009-483, p. 10 (La. App. 5 Cir. 1/26/10), 33 So.3d 215, 221.
In Ohler v. U.S., 529 U.S. 753, 755, 120 S.Ct. 1851, 1853, 146 LEd.2d 826 (2000), the United States Supreme Court held that "[g]enerally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted." See also Clarett v. Roberts, 657 F.3d 664, 670-671 (7th Cir. 2011) ("The logic of Ohler applies with equal force in both criminal and civil cases. ... We note that every circuit to have addressed the question has applied Ohler in civil cases.").
This court in Acosta v. Lea, 56 So.2d 201, 202 (La. App. 1 Cir. 1952), held that an objection to certain testimony of a witness was waived when the objecting party called the witness and proceeded to examine her on the subject matter of the objectionable testimony without reserving his rights under the previous objection. Quoting Hope v. Gordon, 186 La. 697, 173 So. 177, 178 (1936), the court reasoned that:
A party may, by his acts or omissions, waive or be estopped to make objections to the admission or exclusion of evidence. Such waiver or estoppel may arise from failure to object, from acts done or omitted before evidence is offered, as by failure to object to previous similar evidence, or from some affirmative act done after ruling on the evidence. (Emphasis in original.)Acosta, 56 So.2d at 201-202.
In Combs v. Hartford Ins. Co., 544 So.2d 583 (La. App. 1 Cir.), writ denied, 550 So.2d 630 (La. 1989), plaintiff filed a motion in limine seeking to exclude certain photographs, which motion was denied by the trial court. Plaintiff asked that his objection to the court's ruling be noted for purposes of appeal. Plaintiff's counsel then began questioning plaintiff about the photographs and sought to introduce them into evidence. On appeal, this court held that plaintiff was precluded from assigning error to the inclusion of his own evidence. Combs, 544 So.2d at 585.
Applying these precepts to the case before us, we agree with Liberty Mutual regarding the evidentiary rulings made by the trial court below. Considering that Mrs. Williams introduced the very evidence that she now argues was prejudicial to her case, we find that Mrs. Williams has waived her right to challenge the trial court's admission of that evidence. With regard to Dr. Partington's testimony, not only did Mrs. Williams introduce his video deposition during her case-in-chief, but she also referred to Dr. Partington's testimony during her opening statement, advising the jury that Liberty Mutual was going to bring Dr. Partington before them to testify about the films he had reviewed concerning Mrs. Williams' injuries. And, concerning Dr. Ward's deposition, we find it was merely cumulative of Mrs. Williams' medical records from her treatment with Dr. Ward, which were also offered into evidence by Mrs. Williams. Thus, we conclude that even if the trial court had erred in admitting these depositions into evidence, such error would have been harmless.
Accordingly, assignments of error numbers two and three have no merit.
BATSON CHALLENGES
(Assignment of Error Number One)
In this assignment, Mrs. Williams contends the trial court improperly denied her challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) to Liberty Mutual's systematic peremptory striking of potential African American jurors who were close to her age, namely, jurors Gay Square and Carolyn Wooders. We have reviewed the transcript of voir dire in this case and find no error by the trial court in its ruling on the Batson challenges herein.
In an extension of Batson, the United States Supreme Court has held that a private litigant in a civil case may not use peremptory challenges to exclude jurors on the account of race. To do so is a violation of the Equal Protection Clause. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 628, 111 S.Ct. 2077, 2087, 114 L.Ed.2d 660 (1991); see also Lee v. Magnolia Garden Apartments, 96-1328, p. 5 (La. App. 1 Cir. 5/9/97), 694 So.2d 1142, 1146, writ denied, 97-1544 (La. 9/26/97), 701 So.2d 990. To make a Batson challenge, the challenging party first must make a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. To establish a prima facie case, the defendant must show: (1) the challenge was directed at a member of a cognizable group; (2) the challenge was peremptory rather than for cause; and (3) relevant circumstances sufficient to raise an inference that the prospective juror was struck on account of his being a member of that cognizable group. Batson,. 476 U.S. at 96, 106 S.Ct. at 1723. Without an inference that the prospective jurors were stricken because they are members of the targeted group, the defendant is unable to make a prima facie case of purposeful discrimination and his Batson challenge expires at the threshold. See State v. Sparks, 88-0017, pp. 37-38 (La. 5/11/11), 68 So.3d 435, 468-469, cert denied sub nom., El-Mumit v. Louisiana, ___ U.S. ___, 132 S.Ct. 1794, 182 L.Ed.2d 621 (2012).
The burden then shifts to the opposing party to articulate a race-neutral explanation for striking the jurors in question which is related to the case to be tried. Batson, 476 U.S. at 96-98, 106 S.Ct. at 1723-1724; Lee, 96-1328 at 5, 694 So.2d at 1147. A neutral explanation is one that is based on some factor other than the race of the juror excused. In this second step of the process, the explanation need not be persuasive, or even plausible, and unless a discriminatory intent is inherent in the stated reasons, the explanation given should be deemed race-neutral. Lee, 96-1328 at 5, 694 So.2d at 1147.
If reasons are presented for the exercise of a peremptory challenge that are racially neutral on their face, an issue of fact is joined, and the trial court must assess the weight and credibility of that explanation in order to determine whether the party raising the Batson challenge has carried his burden of proving purposeful discrimination. In most cases, this consists of a ruling on the credibility of the attorney exercising the challenge. Lee, 96-1328 at 6, 694 So.2d at 1147. At this final stage, the trial court must consider the persuasiveness of the explanations. It is at this stage that implausible or fantastic justifications may be found to be pretexts for purposeful discrimination. However, the trial court's conclusion on the ultimate question of discriminatory intent is a finding of fact that is accorded great deference on appeal. Id.
The record reflects that as each panel of prospective jurors was questioned, the trial court would entertain challenges from counsel. After the first panel was finished with voir dire, counsel for Liberty Mutual exercised several peremptory challenges, among them being the challenge to prospective juror Square, a 67 year old African American female. Thereafter, the following discussion ensued:
[COUNSEL FOR MRS. WILLIAMS:] Here we go again. Judge, it's not fair.
THE COURT: All right. Well, he's kept others, but let's hear what he has to say.
[COUNSEL FOR LIBERTY MUTUAL:] Your Honor, my issue with Ms. Square is really just her age relationship to this client. I think she's going to relate to a lot of the age issues, and I'm uncomfortable with someone who is going to relate to her age-wise, changes in her body being on this jury.
[COUNSEL FOR MRS. WILLIAMS:] Your Honor, you got people on the back row just as old as Ms. Square.
THE COURT: No, she said she was the eldest.
[COUNSEL FOR MRS. WILLIAMS:] I just think this is a pattern.
THE COURT: Well, all right. I understand your complaint, and I'm going to keep it in mind, that's why I asked him to do that, and that's why I keep track of all this ... is to be very aware of the --
[COUNSEL FOR LIBERTY MUTUAL:] Your Honor, that's our only strike. So we have kept three African-Americans.
THE COURT: All right. ... I'm going to deny your Batson at this point.
Carolyn Wooders, a 67 year old African American female, was on the second panel of prospective jurors. She indicated that she was retired and had cared for her elderly mother until she passed away at the age of 96. When counsel for Liberty Mutual exercised a peremptory challenge as to prospective juror Wooders, counsel for Mrs. Williams again urged a Batson objection. When asked for his basis for the peremptory challenge, counsel for Liberty Mutual responded: "She said that she stayed at home taking care of her mother, I don't want anybody who is taking care of people who have chronic pain issues." The trial court replied, "That's good enough for me."
Mrs. Williams argues on appeal that she has made a prima facie case of racial discrimination against older African American women. She argues that Liberty Mutual did not even question prospective juror Square, but rather challenged her based solely on her age and race. Moreover, she notes that Liberty Mutual had no objection to the placement on the jury of Angela Hooper, a 63 year old Caucasian female. We find no merit to Mrs. Williams' arguments.
On review, we find Mrs. Williams failed to make a prima facie showing that Liberty Mutual exercised the peremptory challenges on the basis of race. Mrs. Williams also failed to produce evidence sufficient to permit the trial court to draw an inference that discrimination had occurred. Further, even if Mrs. Williams had made the requisite prima facie showing that Liberty Mutual exercised peremptory challenges on the basis of race, Liberty Mutual articulated legitimate race-neutral explanations for striking the minority jurors at issue. We further note that several other African Americans were seated as jurors and find no evidence that African Americans were being systematically excluded. Accordingly, we find no error by the trial court in its denial of Mrs. Williams' Batson challenges regarding prospective jurors Square and Wooders.
According to the record, Mrs. Williams also urged Batson challenges concerning prospective jurors Janelle Battieste, a 49 year old African American female, and Deette Perry, a 46 year old African American female. However, on appeal to this court, Mrs. Williams' assignment of error regarding Liberty Mutual's systematic peremptory striking of potential African American jurors focuses on the exclusion of older African American jurors. Therefore, no further discussion of prospective jurors Battieste or Perry is necessary. --------
This assignment of error is without merit.
CONCLUSION
For the above and foregoing reasons, we affirm the September 24, 2014 judgment of the trial court. All costs associated with this appeal are assessed against plaintiff, Linda Williams.