Is Your Neighbor a Nuisance?

Ina recent case involving Keogh Cox attorneys, the Eastern District of Louisiana in MichaelBrander, Jr. v. State Farm Mutual Auto. Ins. Co., Civ. A. No. 18-982(Feb. 14, 2019), 2019 WL 636423 barred testimony of substantial projectedmedical expenses because it was not based on a reliable methodology. Thisruling stands to impact many other cases where plaintiffs seek to usefar-reaching projections of a life-long need for radiofrequency ablations("RFAs") or other pain-management modalities to "board" sixand even seven-figure numbers for future medical expenses.

InDaubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), theUnited States Supreme Court recognized the trial judge as the “gatekeeper” of expertopinion testimony and held that only reliable and relevant expert opinions maybe admitted. The reliability requirement serves to keep expert opinions“outside the gate” when they constitute unsupported speculation or meresubjective belief; only scientifically valid expert opinions are allowedinside. To ascertain whether an expert opinion is scientifically valid, Daubertinstructs the trial court to consider:

∙ whether theexpert’s theory can or has been tested;

∙ whether it hasbeen subject to peer review and publication;

∙ the known orpotential rate of error when applying the theory;

∙ applicablestandards and controls; and,

∙ the degree towhich the theory has been generally accepted in the scientific community.

InBrander, the plaintiff advanced medical testimony that he would needRFAs every year of his expected lifetime, a period of 36 years. The courtdisallowed the testimony, noting that the plaintiff’s physicians had less thanten years personal experience in administering RFAs to patients, the medicalliterature only considered the effectiveness of RFAs over a span of seven toten years, and there was no showing that the 36-year treatment plan was ingeneral acceptance by the medical community. According to the court, theexpert opinions offered by plaintiff failed Daubert “on all points.” Asa result, the plaintiff was permitted to introduce testimony of future RFAs foronly a seven-year period.

The reasoning of Brander may be equally applicable to projections of lifetime treatment involving other medical procedures, such as medial branch blocks, Botox injections, or spinal cord stimulators, for which the long-term efficacy has not been firmly established in the medical literature. Opinions unsupported by personal treatment experience and peer-reviewed medical studies are not scientifically valid and are properly halted “at the gate.”

Nancy B. Gilbert is a partner with Keogh Cox in Baton Rouge, Louisiana. She is a puzzle-solver by nature, and specializes in providing clear and in-depth analysis of complex litigation issues.

Louisiana has exhibited a certain double standard when it comes to seat belts. For years, Louisiana participated in the “Click It or Ticket” public service campaign that lectured on the grave dangers caused by a failure to wear seat belts and the criminal consequences for a failure to comply. Nevertheless, and for decades, the failure to wear a seat belt was off limits as evidence to reduce a plaintiff’s recovery in a personal injury context. But, the rule was changed: effective January 1, 2021, the “gag rule” against evidence that a plaintiff failed to wear a seat belt in an accident has been lifted. La. R.S. 32:295.1. Louisiana has no recent history with the “seat belt defense,” such that many questions arise. To frame these questions, this blog takes a quick look to cases from other states and certain guideposts that may already exist in Louisiana jurisprudence.

Like several other states, Florida has a history with the defense. In Smith v. Butterick, 769 So.2d 1056, 1058-9 (Fla.2d DCA 2000), the court outlined three elements of proof a defendant must show to prevail on the defense. Similar elements have been identified in other states. See, e.g., Law v. Superior Court In and For Maricopa County, 157 Ariz. 147, 755 P.2d 1135 (1988). Louisiana may adopt similar elements or chart a different course. The elements outlined in Smith were as follows:

1-Failure to use an available, operational seat belt

This element can be proven through testimony from the plaintiff, passengers, responding law enforcement, or other such testimony or evidence to show that a seat belt was not in use at the time of the accident. Similarly, testimony or photographs may be used to show that the seat belt was operational.

2- Failure to use seat belt was unreasonable under the circumstances

Insofar as Louisiana and most states generally mandate the use of seatbelts, this element should be easy to demonstrate. Therefore, unusual facts may be necessary to excuse a plaintiff’s failure to use a seat belt such as an emergency trip to the hospital.

3-Plaintiff’s failure to use a seat belt substantially caused or contributed to the damages

Of the three possible elements, this is likely to be the battleground. In some cases, the issue may be simple. For instance, if a plaintiff’s failure to use a seatbelt allows their body to strike (or travel through) a windshield, it may be simple to show that the plaintiff’s (or decedent’s) failure to use a seatbelt magnified the injuries. Expert testimony may not even be needed. In Smith, testimony from a mechanical engineer that the passenger would not have hit interior surfaces had they used a seat belt was allowed. However, will expert testimony be required in most cases and what type of expert will be needed? Engineer? Physician? Biomechanical?

Will the defendant bear the burden to prove the aggravation like they have in many national cases? Will Louisiana courts fashion an inference or “shifting burden” approach where a prima facie showing that a plaintiff’s whose failure to wear a seat belt increased the possibility of injury would possess the burden to show their injuries would have occurred even had they used a seat belt. In Anderson v. Watson, 953 P. 2d 1284 (Colo. 1998), the court required the defendant to only show a prima facie case of seat belt nonuse to allow the fact of nonuse to go to the jury.

Seat belts are required because they can prevent or lessen injury. Does a defendant have to show the precise details as to how seat belt nonuse caused or magnified the injury? In Louisiana, these answers remain unclear; but these are some of the questions.

Further complications are present in cases involving alleged traumatic brain injury (TBI) and the new frontier of vestibular injuries. Louisiana courts have often rejected testimony from accident reconstruction or bio-mechanical experts for a variety of reasons, but with this statutory defense, such testimony may be critical to determine who is responsible for an alleged catastrophic loss. States that recognize this rule have examined many factors that relate to the injuries that arise from the failure to use a seatbelt. As such, it seems inevitable that expert testimony on this issue must be considered in many nonuse cases.

No doubt, many of these questions will be the subject of litigation arising from accidents which occur after January 1, 2021. Louisiana’s double standard has ended. What is certain is that a failure to wear a seat belt now has the potential to harm not only a plaintiff’s health, but also their chances of recovery in civil litigation.

Collin is a Keogh Cox partner who litigates injury, commercial, and legal malpractice disputes. He lives in nearby Zachary, Louisiana with his wife Melissa and three all too active children. He is an outdoorsman, a tennis player, a cook, and a hobbyist writer.

This blog was written in partnership with John P Wolff, III.

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We previously reported that the Louisiana Supreme Court issued Orders suspending prescriptive, peremptive and abandonment periods for thirty days in the wake of Hurricane Ida. Governor John Bel Edwards has now issued a Proclamation. In addition to other actions, the Proclamation provides that legal deadlines applicable to “legal proceedings in all courts, administrative agencies, and boards” are suspended until September 24, 2021.

The Proclamation also authorizes hotels and motels to cancel reservations which would result in the displacement or eviction of first responders, health care workers, or anyone performing disaster-related work.