Court Finds Legal Malpractice Claim Perempted Because the Client Knew It Received “Bad Advice” More than One Year Before Suit Was Filed

The use of biomechanical expert testimony in Louisiana courts has evolved over the last few years. A recent decision from the Louisiana Fifth Circuit Court of Appeal provides an example of the changing standards for the admissibility of biomechanical expert testimony and its relation to medical causation.

In Pollard v. 21st Century Centennial Ins. Co., 21-65 (La. App. 5 Cir. 12/23/21), 334 So. 3d 1013, writ denied, 2022-00163 (La. 4/20/22), the defendants argued that the underlying accident involved a minor rear-end impact not likely to cause injury. The defendants hired a biomechanical expert who was also a medical doctor. The expert performed an “impact severity analysis” to determine the force of impact in the collision.

The expert concluded that the accident involved a minimum damage collision; he relied upon the “force reflection method” and test data at his crash test facility to determine how fast the rear-ending vehicle would have traveled to cause the damage present on the plaintiff’s vehicle. Based upon his findings, the expert opined that the plaintiff was not seriously injured in the collision. He went further to testify that specific injuries could not have been caused by the forces involved.

The Fifth Circuit noted the same expert was previously excluded in a case that went to the Louisiana Supreme Court in Blair v. Coney, 2019-00795 (La. 4/3/20), reh'g denied, 2019-00795 (La. 7/9/20), 298 So. 3d 168, where the Court found the expert’s testimony to be based upon insufficient facts or data. In Blair, the Supreme Court found the expert’s testimony should be excluded because he did not (1) inspect either vehicle involved in the collision; (2) speak with the damage appraisers; (3) know the plaintiff’s body position at the time of the accident; (4) inspect plaintiff’s vehicle for variance from the test-vehicle or (5) interview the plaintiff. Thus, his testimony failed to meet the requirements of C.E. art. 702(A)(2).

Citing the Blair decision, the Louisiana Fifth Circuit in Pollard concluded that the expert “relied on the same [improper] methodology in reaching his conclusions.” Therefore, the appellate court found the trial court erred in denying a motion in limine to exclude the expert’s testimony. Although the expert cited to peer-reviewed literature to support his conclusions, the evidence revealed that “most of the research and articles” he cited were either written by him or one of his employees.

Effective January 1, 2021, Louisiana amended La. R.S. 32.295.1, which now allows the admission of a plaintiff’s failure to wear a seat belt as a factor to be considered in comparative fault. Defendants will seek to use biomechanical experts to prove that the failure to use a seatbelt substantially caused or contributed to the damages.

Biomechanical testimony may be allowed. However, as shown in Pollard, biomechanical opinions which lack sufficient inquiry to match the analysis to the real-world impact will be treated with skepticism. Taking Blair and Pollard together, the courts appear to resist expert biomechanical opinions which seek to definitively resolve medical causation which often involves subjective elements and credibility determinations reserved for the trier of fact.

It is certain that defendants will continue to advance the “low impact” argument because force-of-impact testimony is a relevant factor in determining causation or extent of injuries. See, e.g., Merrells v. State Farm Mutual Auto, Ins. Co., 33-404 (La. App. 2 Cir. 6/21/00), 764 So. 2d 1182. What is less than certain is the role of the biomechanical expert. Following the Fifth Circuit’s decision in Pollard, the Louisiana Supreme court denied the defendant’s writ application 4 to 3, with all three dissenters advising they would have granted the writ. Issues surrounding the use and scope of testimony from biomechanical experts appear far from settled.

The Louisiana Supreme Court recently issued a ruling on the application of the "open and obvious" doctrine in slip and fall cases. The facts of Broussard v. State of Louisiana, 2012-1238 (La. 4/5/13), presented problems for both sides. A UPS driver tripped and fell over an offset between the floor and an elevator. The elevator in a State building had problems for years. One problem was that the elevator would not align properly between floors causing an offset between the floor and the elevator. However, the UPS driver delivered products to this particular State building daily and was well aware of the problem. At the time of the incident, he noticed that the elevator was not properly aligned but nevertheless attempted to pull a dolly with approximately 300 pounds of computer paper over the offset. The inertia created caused the plaintiff to lose control. Plaintiff sued the State, the owner of the building, for injury to his back.

To recover damages from an owner of a building for a slip and fall, a plaintiff must prove: 1) ownership of the building; 2) owner's knowledge of the defect; 3) that damage could have been prevented by reasonable care; 4) that the owner failed to exercise reasonable care; 5) causation of damages; and 6) that the defect in the building created an unreasonable risk of harm. La. C.C. art. 2322; Entrevia v. Hood, 427 So. 2d 1146 (La. 1983). It was the "unreasonable risk of harm" element that was at issue before the Broussard Court.

Louisiana jurisprudence has created a risk-utility balancing test to determine if a defect in a building poses an unreasonable risk of harm. The risk-utility balance test consists of four factors: 1) the utility of the complained-of condition; (2) the likelihood and magnitude of harm, including the obviousness and apparentness of the condition; (3) the cost of preventing the harm; and (4) the nature of the plaintiff's activities in terms of its social utility or whether it is dangerous by nature. Dauzet v. Curnest Guillot Logging, Inc., 08-0528 (La. 12/2/08), 995 So. 2d 1184.

In applying this balancing test, the jury found the State 62% liable and Plaintiff 38% liable for Plaintiff's damage. The court of appeal reversed that decision. It found that, where the Plaintiff knew of the defect, the defect was "open and obvious" such that the State had no duty to protect against the condition.

The Louisiana Supreme Court disagreed. Under the specific facts of the case, the Court found that Plaintiff's knowledge of the defect was insufficient to meet the open and obvious test. According to the Court, for a defect to be considered open and obvious it must be open and obvious to all. "Thus, in order to be open and obvious, the risk of harm should be apparent to all who encounter the dangerous condition." Broussard, p. 17.

The Supreme Court reasoned that the open and obvious question is not based upon the plaintiff's particular state of mind. Such an analysis is akin to assumption of the risk - a theory of law that was omitted when Louisiana enacted its comparative fault regime. Instead, the open and obvious to all standard is, according to Broussard, "sensible . . . and does not undermine the comparative fault regime by allowing a plaintiff's negligence to operate as a bar to recovery in a case where the defendant's conduct poses a risk of harm to the hypothetical blameless plaintiff." Id. p. 18.

The true impact of the Broussard decision remains to be seen. Under one reading, the opinion's impact should be limited to its specific facts. Under any interpretation, Broussard preserves the rule that an allegedly defective condition which is obvious to all will bar recovery to the plaintiff.

La Code Evid. Art. 704 addresses the use of expert testimony in Louisiana Courts and provides, “Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact.” Though the text of this article is simple, Louisiana trial courts often face questions about when an expert’s opinion crosses a line and invades the jury’s fact-finding function. These questions often arise in the context of Daubert hearings under La. Code Civ. P. art. 1425.

The Louisiana Supreme Court recently addressed this issue in Hulin v. Snow, where the Court was asked to review the extent to which an expert in a civil case could offer testimony that addressed the ultimate issues of law and fact in the case. The ultimate issue in the Hulin case, which involved parental care, was the alleged negligence of the defendants. The Court examined multiple tendered opinions of the plaintiffs’ expert, including expert testimony about the defendants’ negligence and credibility.

In a Per Curiam opinion, the Court ruled that it was improper for the expert to testify on the ultimate issues of whether the defendants were negligent or credible. It held that “(a)lthough experts may aid the trial court in the determinations of ultimate facts, the final conclusions drawn from those facts belong exclusively to the trier of fact.” The testimony of plaintiffs’ expert stated conclusions about these ultimate issues. Therefore, it was inadmissible.

However, the Court did allow the expert, a board-certified pediatrician, to opine on the parental care of the defendants. “Even though this testimony may embrace some of the ultimate issues to be decided by the trier of fact, it is permissible.” It appears the Court found that this testimony did not state conclusions about ultimate issues, as the Court held that the trier of fact could accept or reject the expert’s opinions on parental care as they relate to ultimate facts.

Reference:

Hulin v. Snow, 2023-00530 (La. 6/26/23), --- So.3d ---, 2023 WL 4199310.