334 So.3d 761
Teresa JEFFRIES
v.
PRIME INSURANCE COMPANY, et al.
21-161
Court of Appeal of Louisiana, Third Circuit.
November 3, 2021
Paul A. Eckert, Sidney W. Degan, III, Degan, Blanchard & Nash, 5555 Hilton Avenue, Suite 620, Baton Rouge, Louisiana 70808, (225) 610-1110, COUNSEL FOR DEFENDANT/APPELLANT: Prime Insurance Company
Randall A. Smith, J. Geoffrey Ormsby, Dylan T. Leach, Smith & Fawer, L.L.C., 201 St. Charles Avenue, Suite 3702, New Orleans, Louisiana 70170, (504) 525-2200, COUNSEL FOR DEFENDANT/APPELLANT: Prime Insurance Company
Frank X. Neuner, Jr., Jennifer M. Ardoin, Katelyn E. Bayhi, NeunerPate, One Petroleum Center, 1001 West Pinhook Road, Suite 200, Lafayette, Louisiana 70503, (337) 237-7000, APPELLATE COUNSEL FOR DEFENDANTS/APPELLANTS: Terry Graham Trucking, Inc., Elvis Thompson
Matthew Green, Dill Law Firm, P.O. Box 3324, Lafayette, Louisiana 70502, (337) 261-1408, COUNSEL FOR DEFENDANTS/APPELLANTS: Terry Graham Trucking, Inc., Elvis Thompson
Justin T. Morales, Todd A. Townsley, David H. Hanchey, The Townsley Law Firm, 3102 Enterprise Boulevard, Lake Charles, Louisiana 70601, (337) 478-1400, COUNSEL FOR PLAINTIFF/APPELLEE: Teresa Jeffries
Thomas H. Huval, Jones Fussell, LLP, Post Office Box 1810, Covington, Louisiana 70434, (985) 892-4801, COUNSEL FOR PLAINTIFF/APPELLEE: Financial Indemnity Company
John M. Welborn, III, Attorney at Law, 508 North Pine Street, DeRidder, Louisiana 70634, (337) 462-1200, COUNSEL FOR PLAINTIFFS/APPELLEES: Tracey Day on behalf of Briley Day, Tracey Day on behalf of Brooklyn Day, Bradley Day on behalf of Briley Day, Bradley Day on behalf of Brooklyn Day, Tracey Day, Bradley Day
J. Craig Jones, Jones & Hill, 131 Hwy 165 South, Oakdale, Louisiana 71463, (318) 335-1333, COUNSEL FOR PLAINTIFFS/APPELLEES: Tracey Day on behalf of Briley Day, Tracey Day on behalf of Brooklyn Day, Bradley Day on behalf of Briley Day, Bradley Day on behalf of Brooklyn Day, Tracey Day, Bradley Day
L. Phillip Canova, Jr., Canova and DeLahaye, LLC, 58156 Court Street, Plaquemine, Louisiana 70764-2708, (225) 687-8340, COUNSEL FOR PLAINTIFF/APPELLEE: Government Employees Insurance Company
Martin Edward Golden, Keogh, Cox & Wilson, Post Office Box 1151, Baton Rouge, Louisiana 70821, (225) 383-3796, COUNSEL FOR DEFENDANT/APPELLEE: Rescare, Inc.
James Morgan Passman, Attorney at Law, 201 Johnston Street, Suite 402, Alexandria, Louisiana 71301, (318) 445-6384, COUNSEL FOR PLAINTIFF/APPELLEE: Government Employees Insurance Company
Thomas A. Filo, Cox, Cox, Filo, Camel & Wilson, LLC, 723 Broad Street, Lake Charles, Louisiana 70601, (337) 436-6611, COUNSEL FOR CROSS-CLAIMANT: Terry Graham Trucking, Inc.
Court composed of Shannon J. Gremillion, John E. Conery, and Charles G. Fitzgerald, Judges.
CONERY, Judge.
The claims of the three Defendants in the case now before us were severed for trial purposes from claims of others in litigation arising out of the same accident. Defendants, Terry Graham Trucking, Inc. (Graham), its driver, Elvis Thompson (Mr. Thompson), and Prime Insurance Company (Prime) (collectively, Defendants) timely appeal the trial court's pre-trial ruling granting the Plaintiff, Theresa Jefferies’ (Ms. Jeffries) motion to strike Defendants’ two expert witnesses, K. Samer Shamieh, M.D and Stephanie S. Haupt at a pre-trial hearing held immediately prior to the start of a jury trial. A request for a continuance by Defendants was heard and denied on September 27, 2017, and judgment denying the continuance was issued on Thursday, October 3rd before trial on Monday the 7th. Following a jury trial on the merits, the jury returned a verdict of $2,508,853.00 against Defendants in solido, which was reduced to judgment on October 30, 2019.
Following the jury trial and entry of that final judgment, Defendants timely filed a motion for new trial, claiming prejudicial error based on the trial court's ruling on Plaintiff's motion to strike excluding their only two expert witnesses. The trial court denied Defendants’ motion for new trial at a hearing held on January 3, 2021.
On February 6, 2020, the trial court signed a final judgment denying Defendants’ motion for new trial, and notice of mailing of judgment was issued on March 3, 2020. A motion for suspensive appeal was filed by Defendants on March 16, 2020, with the order granting the appeal signed on April 3, 2020. The appeal bond for the entire amount of the judgment was filed on June 1, 2020. At trial, the Defendants stipulated to liability, and that issue is not before us on appeal. For the following
reasons, we affirm in part, amend in part, and remand for further proceedings.
ASSIGNMENTS OF ERROR
Defendants Graham and Mr. Thompson assert the following assignments of error on appeal:
1. The trial court's Pre-Trial Scheduling Order did not require the exchange or production of expert witness reports. The trial court erred in granting Plaintiff's Motion to Strike Defendants’ Experts based on the failure to produce and exchange expert witness reports.
2. The trial court's damages award was excessive and a clear abuse of the jury's discretion.
Defendant Prime asserts the following assignments of error on appeal:
1. The District Court erred in striking Defendants’ only two (2) experts on the morning of trial.
2. The District Court erred in casting Prime in judgment in excess of the limits of the Policy.
3. The District Court erred in failing to find that the applicable limits of the Policy were $300,000.00 per occurrence, or $100,000.00 for injury or death for one person.
FACTS AND PROCEDURAL HISTORY
This lawsuit resulted from a rear-end collision on March 31, 2017, wherein Defendant, Mr. Thompson, who was driving an eighteen wheeler owned by Graham and insured by Prime, collided into the rear of a vehicle owned by Bradley Day, which in turn was propelled into Plaintiff/Jeffries vehicle, allegedly causing the injuries to Plaintiff Ms. Jeffries (Ms. Jeffries). Ms. Jeffries filed suit against Prime, Graham, and Thompson on December 15, 2017. On August 23, 2018, Defendants filed a motion to consolidate Ms. Jeffries’ suit with the two other lawsuits resulting from the same accident, including a suit filed by Bradley and Tracey Day (hereafter "the Day case.")1 Financial Indemnity Company (Financial), Ms. Jeffries’ collision insurer, filed suit against Defendants to recover the amount paid for property damage to her vehicle. The trial court signed an order granting Defendants’ motion to consolidate on September 4, 2018.
A jury trial was fixed for October 7, 2019, and the trial court signed its Pre-Trial Order on February 5, 2019, setting various deadlines, including a July 7, 2019 deadline for exchange of expert witness lists. The Pre-Trial Order stated in pertinent part, "Each party shall furnish to all other parties, in writing, a list of all expert witnesses with addresses and their expertise with a duplicate copy thereof to be filed with the Clerk of Court three (3) months before trial." (Emphasis added.)
The Pre-Trial Order did not specifically provide for either the production or exchange
of expert reports in accordance with La.Code Civ.P. art. 1425(B) and (C).2
On July 3, 2019, Defendants timely filed their Expert Witness List which included the two expert witnesses at issue in this appeal and described each as follows:
1. K. Samer Shamieh, M.D ., DISC of Louisiana, 76 Starbrush Circle, Covington, Louisiana 70433, via live testimony or trial deposition, defense medical expert in the field of neurology and neurosurgery to testify regarding medical causation and of the plaintiff's medical damages.
....
4. Stephanie S. Haupt , Hegwood & Company, LLC, Vocational Rehabilitation Counselor, 2017 Ormond Blvd., Destrehan, Louisiana, 70047, via live testimony or trial deposition, defense expert to testify regarding her vocational assessment.
Shortly before the consolidated cases were scheduled for trial, a motion to sever the Day case was filed on September 11, 2019, by Bradley and Tracey Day. On September 16, 2019, Defendants filed a motion to continue the consolidated trials. A hearing was held on both motions on September 27, 2019. The trial court issued a judgment on October 3, 2019 granting the Days’ motion to sever as well as a continuance of the Days’ trial date. The trial court denied the Defendants motion to continue Ms. Jeffries’ trial date and it proceeded on October 7, 2019.
Defendants’ counsel had requested that Plaintiff submit to an IME by Dr. Shamieh as well as an evaluation by its chosen Vocational Rehabilitation Expert, Stephanie Haupt. Plaintiff voluntarily and timely co-operated with both requests without the necessity of a court order. Due to Defendants’ late request for IMEs, and through no fault of Plaintiff, Dr. Shamieh's examination was not scheduled by Defendants and did not take place until September 19, 2019, just seventeen (17) days before trial on October 7. Ms. Haupt's vocational rehabilitation evaluation was not scheduled for and was not conducted until September 4, 2019, just thirty four (34) days before trial....
