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RAEVEN DUNCAN v. BRETT GAUTHIER, BRETT GAUTHIER'S AUTO SALES, COLLISION SPECIALTIES, INC., & HOUSTON SPECIALTY INSURANCE CO.
This matter is before us on appeal by defendants, Brett Gauthier, Brett Gauthier's Auto Sales, and State National Insurance Company, from a judgment of the trial court in favor of plaintiff, Raeven Duncan. For the reasons that follow, we amend and affirm.
FACTS AND PROCEDURAL HISTORY 1
On April 11, 2012, at approximately 5:00 p.m., Raeven Duncan was involved in an automobile accident with Brett Gauthier near the intersection of Florida Boulevard (Florida) and Rushmore Avenue (Rushmore) in Baton Rouge. At the site of the accident, Florida is a four-lane asphalt highway, with east and westbound lanes divided by a grass median and a posted speed limit of 50 miles per hour (mph). Grass medians also separate Florida from a pair of two-lane service roads, one running parallel to and north of Florida and the other running parallel to and south of Florida. Rushmore runs perpendicular to and crosses Florida from the north, but does not continue south of Florida. Stop signs are posted for traffic entering Florida from Rushmore, one before the north service road and the other within the median between the east and westbound lanes of Florida. At the time of the accident, the road was wet from earlier rain.
Immediately before the accident, Mr. Gauthier, who was the owner of Brett Gauthier's Auto Sales 2 and Collision Specialties, Inc., was operating a 2007 Mercedes Benz E350 in the left westbound lane of Florida. The vehicle was owned by Brett Gauthier's Auto Sales, and Mr. Gauthier was in the course and scope of his employment with Brett Gauthier's Auto Sales. Ms. Duncan was driving south on Rushmore in a 2002 Hyundai Elantra, owned by Betty Duncan. She was preparing to turn left to enter the eastbound lanes of Florida. Ms. Duncan stopped at the stop sign posted before the north service road before entering the westbound lanes of Florida.
The parties dispute the cause of the subsequent accident. According to Mr. Gauthier, when Ms. Duncan attempted to cross the westbound lanes of Florida, she darted in front of him in a manner that caused his vehicle to collide with hers in his lane of travel. According to Ms. Duncan, she successfully crossed the westbound lanes of Florida, stopped at the stop sign within the median between the east and westbound lanes of Florida, and was stopped, with no part of her vehicle protruding into Mr. Gauthier's lane of travel, when Mr. Gauthier's vehicle veered out of his lane and struck her vehicle. Photographs of the vehicles taken after the accident show damages sustained across the front end of Mr. Gauthier's Mercedes and the rear driver's side door of Ms. Duncan's Hyundai. Both parties were taken to the hospital by ambulance.
On May 18, 2012, Ms. Duncan filed a petition seeking damages for personal injuries and property loss allegedly sustained in the accident against Brett Gauthier, Brett Gauthier's Auto Sales, Collision Specialties, Inc., and Houston Specialty Insurance Company. Ms. Duncan subsequently filed a First supplemental and amending petition (first amended petition) naming as additional defendants, State National Insurance Company, insurer of Brett Gauthier's Auto Sales, and Steven Colburn, an employee of Collision Specialties, Inc. Additionally, Ms. Duncan's first amended petition asserted survival action and wrongful death claims contending that the stress of the accident, combined with the trauma to her abdomen, caused her to experience a miscarriage soon after the accident.
Ensuing litigation reduced both the scope of Ms. Duncan's claims and the number of defendants. The trial court sustained the objection of no cause of action as to the survival action claims on behalf of Ms. Duncan's unborn child. Thus, Ms. Duncan omitted those claims from her second supplemental and amending petition (second amended petition). Ms. Duncan's claims against Collision Specialties, Inc. and Houston Specialty Insurance Company were dismissed, without prejudice, pursuant to her motion to dismiss said claims. Ms. Duncan's claims against Mr. Colburn were dismissed, with prejudice, on summary judgment. Finally, Ms. Duncan's claims for wrongful death on behalf of her unborn child against the remaining defendants, Brett Gauthier, Brett Gauthier's Auto Sales, Collision Specialties, Inc., and State National Insurance Company, Inc. (collectively sometimes, “defendants”), were dismissed, with prejudice, on May 1, 2018, on a motion for partial summary judgment.
Ms. Duncan's remaining claims against defendants proceeded to a bench trial on September 26, 2019, to determine liability, medical causation, and damages. In addition to the testimony of the parties, the trial court heard the testimony of Edward Carrick, P.E., a mechanical engineer and accident reconstructionist tendered as an expert witness by Ms. Duncan. Officer Antoine Salassi of the Baton Rouge Police Department, the police officer who conducted the traffic crash investigation, also testified. As noted above, the parties offered conflicting testimony regarding the cause of the accident. Mr. Gauthier testified he was proceeding west on Florida in the left travel lane when Ms. Duncan darted out in front of him. Ms. Duncan testified she successfully crossed Florida and was stopped in the median when Mr. Gauthier left his lane of travel and struck her vehicle. Mr. Carrick testified that the damage to the vehicles, the tire skid marks in the grass median, and the final resting positions of the vehicles aligned with Ms. Duncan's testimony and conflicted with Mr. Gauthier's version of events. In contrast, Officer Salassi testified it was his opinion that Ms. Duncan caused the accident by proceeding through the westbound lanes of Florida when Mr. Gauthier did not have time to stop, but also stated he would defer to an accident reconstructionist. In addition to the above testimony, the trial court received into evidence photographs of the vehicles after the accident, the State National Insurance Company, Inc. insurance policy, Ms. Duncan's medical records, Mr. Carrick's report, and an animation prepared in connection with Mr. Carrick's report.
Following trial, the trial court issued written reasons for judgment on December 3, 2019, which contained the trial court's explicit determination that Ms. Duncan's testimony was “believable,” that Mr. Carrick was “credible, as his findings were supported by the evidence,” and that “[Mr.] Gauthier had a duty to maintain control of his vehicle and he did not.” Two judgments arising from the September 26, 2019 bench trial on the merits were signed by the trial court. The trial court signed the original judgment on the merits on December 26, 2019. The original judgment stated that defendants were “100% liable for causing the damages” Ms. Duncan suffered and awarded her past medical expenses in the amount of $19,202.60, general damages in the amount of $125,000, and an expert expense in the amount of $10,219.55. The trial court signed a second judgment on the merits on December 30, 2019. The December 26, 2019 and December 30, 2019 judgments differed in that the original judgment was rendered against defendants, “Brett Gauthier, Brett Gauthier d/b/a Brett Gauthier's Auto Sales, and State National Insurance Company,” while the second judgment was rendered against defendants, “Brett Gauthier, Brett Gauthier's Auto Sales Collision Specialties, Inc. and State National Insurance Company.” (Emphasis added.) The judgments further differed in that the original judgment awarded Ms. Duncan a fee of “$1,1250.00” for the trial deposition of Dr. David Wyatt, while the second judgment corrected the amount to show plaintiff was awarded “$1,250.00” for the trial deposition fee of Dr. David Wyatt.
Defendants filed a motion and order for a devolutive appeal from the December 30, 2019 judgment of the trial court. On appeal, in Duncan v. Gauthier, 2021-0220 (La.App. 1 Cir. 10/28/21), 332 So.3d 1191 (Duncan I), this Court found that the changes made in the December 30, 2019 judgment, specifically changing the name of a party cast in judgment and/or adding a party to a judgment, without recourse to the proper procedure and where the defendants did not consent to the substantive change in the judgment, constituted an impermissible substantive change in the judgment. Duncan I, 332 So.3d at 1197. Thus, the December 30, 2019 judgment was an absolute nullity and of no effect. Accordingly, we vacated the December 30, 2019 judgment, reinstated the December 26, 2019 judgment, and dismissed the appeal of the December 30, 2019 judgment. Further, recognizing that there was no record evidence that the defendants received notice of the December 26, 2019 judgment, and considering the well-settled precept that appeal delays do not begin to run until proper notice is mailed by the clerk, we remanded the matter with instructions to the trial court to order the clerk of court to issue proper notice of the December 26, 2019 judgment in compliance with LSA-C.C.P. art. 1913(D). And, in light of the remand, we also noted in Duncan I that the December 26, 2019 judgment may be amended by the trial court to correct the trial court's clerical error in awarding “$1,1250.00” for the trial deposition fee of Dr. David Wyatt. Duncan, 332 So.3d at 1198.
Following our remand in Duncan I, defendants filed a motion for suspensive appeal to seek review of the December 26, 2019 judgment, which the trial court granted on March 8, 2022. This Court, ex proprio motu, issued a rule to show cause order, pointing out that we could not determine if the motion for suspensive appeal was timely filed because the record on appeal did not include notice of the December 26, 2019 judgment. Defendants filed a brief asserting that, despite this Court's instructions to the trial court to order the clerk of court to issue proper notice in Duncan I, notice had not been issued. Defendants maintained that because no notice had been issued, the time delays to file an appeal had not started to run, and the motion for suspensive appeal was therefore timely. Thus, defendants stated they “waiv[ed] their right to receive a notice of judgment” in order to proceed on this matter. On July 18, 2022, this Court issued an unpublished order maintaining the appeal. Accordingly, we proceed to the merits.
ASSIGNMENTS OF ERROR
Defendants contend that the trial court erred in finding Ms. Duncan's testimony credible. Defendants also maintain that the trial court erred in permitting Mr. Carrick to testify as an expert, in finding Mr. Carrick's testimony credible, and in permitting the introduction of Mr. Carrick's animation. Defendants further assert that the trial court erred in finding Mr. Gauthier breached his duty to maintain control of his vehicle.
All motorists owe a general duty to observe what should be observed. Additional duties also arise depending on the motorist's movements on the roadway in relation to other vehicles. ES v. Thomas, 2017-1213 (La.App. 1 Cir. 5/31/19), 278 So.3d 982, 986-87. The duty of a motorist approaching an intersection controlled by a stop sign is set forth in LSA-R.S. 32:123. Louisiana Revised Statutes 32:123(B) provides that every driver approaching a stop sign shall stop, and after having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard. Carter v. Richard, 2008-1891 (La.App. 1 Cir. 5/13/09), 2009 WL 1330389, *2, citing Williams v. Garner, 268 So.2d 56, 60 (La.App. 1 Cir. 1972). As is clear from LSA-R.S. 32:123(B), when approaching a stop sign, stopping is only part of the motorist's duty. The other requirement of the motorist's duty is to assess traffic and make certain the way is clear before proceeding. ES, 278 So.3d at 987.
Conversely, the duty of a motorist traveling on the favored street, such as Mr. Gauthier, is not as onerous. A motorist on a right of way street is entitled to assume that motorists on the unfavored street approaching a stop sign will obey the traffic signal and will stop, look, and yield the right of way to traffic proceeding on the favored street. Once a right of way motorist in the exercise of ordinary vigilance sees that another motorist has failed to yield the right of way, a new duty thereafter devolves on the right of way motorist to take reasonable steps to avoid an accident if there is enough time to afford him a reasonable opportunity to do so. ES, 278 So.3d at 987, quoting Sanchez Fernandez v. General Motors Corp., 491 So.2d 633, 636 (La. 1986).
Generally, the trial court is granted broad discretion in making evidentiary rulings, including the admission and scope of expert testimony, and its determinations will not be disturbed on appeal absent a clear abuse of discretion. Giavotella v. Mitchell, 2019-0100 (La.App. 1 Cir. 10/24/19), 289 So.3d 1058, 1069-70, writ denied, 2019-01855 (La. 1/22/20), 291 So.3d 1044. However, when the trial court commits evidentiary error that interdicts its fact-finding process, we are required to 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. Thompson v. Transocean Offshore Deepwater Drilling, Inc., 2019-0440 (La.App. 1 Cir. 2/21/20), 293 So.3d 80, 84, writ denied, 2020-00802 (La. 10/14/20), 302 So.3d 1115. Accordingly, we first consider whether the trial court erred in permitting Mr. Carrick to testify as an expert in the field of accident reconstruction.
At trial, Mr. Garrick's testimony was that he was a licensed mechanical engineer, a registered “P.E.,” or Professional Engineer, and a certified traffic accident reconstructionist. Mr. Carrick further testified he had about twenty-five years of experience as an engineer, and eleven or twelve years of experience as an accident reconstructionist, and was previously tendered and accepted as an expert in Louisiana district courts and in federal courts. Mr. Carrick explained that accident reconstruction primarily involves the application of physics and the scientific method, specifically considering physical evidence and testimony to formulate various hypotheses that may be proven or disproven by math and science. Mr. Carrick also stated that his accident reconstruction training included training to provide expert findings regarding human behavior, particularly with regard to how most people behave while driving.
During voir dire, defendants objected to Mr. Carrick's qualification as an expert witness on the basis of two 3 rulings on motions in limine that sought to limit or exclude his expert testimony in the Eastern District of Louisiana. Defendants maintained that the Eastern District excluded Mr. Carrick's testimony in both cases because he was not qualified, and therefore, the Eastern District's rulings provided a basis for the trial court to exclude Mr. Carrick's testimony in this matter. However, the record does not support defendants' contention. In the first case, the Eastern District's ruling explicitly excluded portions of Mr. Carrick's testimony because they were irrelevant, not because he was found unqualified. In the second case, a minute entry reflected that the Eastern District excluded Mr. Carrick's testimony, but the minute entry did not contain the reasoning for the exclusion, and defendants did not offer other evidence that the exclusion was based on a finding that Mr. Carrick was not qualified.4 Moreover, our own review of the jurisprudence reflects multiple instances in Louisiana courts in which Mr. Carrick was accepted as an expert. See Gaines v. Lemoine, 2019-0551 (La.App. 1 Cir. 2/21/20), 297 So.3d 775, 779; State v. Robinson, 2018-1441 (La.App. 1 Cir. 11/20/19), 291 So.3d 270, 276; Spann v. Gerry Lane Enterprises, Inc., 2016-0793 (La.App. 1 Cir. 8/24/18), 256 So.3d 1016, 1023, writ denied, 2018-1584 (La. 12/3/18), 257 So.3d 194, and writ denied, 2018-1649 (La. 12/17/18), 258 So.3d 599. Having carefully considered Mr. Carrick's qualifications as reflected in the record before us, we cannot say that the trial court abused its great discretion in qualifying Mr. Carrick as an expert in accident reconstruction.5
Defendants also make arguments that seem to challenge Mr. Carriers methodology, such as critiquing Mr. Carrick's reliance on two-dimensional photographs of the aftermath of the accident and use of measurements “based on a technique of measuring the streets using landmarks shown in the photographs,” and complaining that Mr. Carrick did not measure the tire skid marks and did not test the coefficient of friction at the site of the accident. The standard for determining the admissibility of expert testimony was established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and is now codified in LSA-C.E. art. 702, and primarily concerns the methodology employed by experts. Freeman v. Fon's Pest Management, Inc., 2017-1846 (La. 2/9/18), 235 So.3d 1087, 1089-90. However, in this matter, we find that the trial court could have determined that the objections defendants raised were objections to the conclusions reached by Mr. Carrick, rather than objections to the methodology he applied. See Freeman, 235 So.3d at 1090. Ms. Duncan presented evidence at the hearing to establish Mr. Carrick's methodology, and defendants vigorously cross-examined Mr. Carrick. Nevertheless, defendants offered no contradictory evidence to suggest the methodology Mr. Carrick employed was improper. Consequently, defendants' arguments appear to challenge the weight or credibility of Mr. Carrick's opinions, not the admissibility of his expert opinion. See Freeman, 235 So.3d at 1090, and Spann, 256 So.3d at 1023. These arguments lack merit.
Having found the trial court did not err in qualifying Mr. Carrick as an expert witness in the field of accident reconstruction and admitting his testimony, and because defendants' contention that the trial court erred in finding Mr. Gauthier failed to maintain control of his vehicle was apparently a consequence of the trial court's finding that Ms. Duncan and Mr. Carrick were credible, we consider defendants' arguments on the issues of Ms. Duncan's credibility and Mr. Carrick's credibility in conjunction with the question of Mr. Gauthier's negligence.
In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard. Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014-2592 (La. 12/8/15), 193 So.3d 1110, 1115. Under this standard of review, we may not set aside a trial court's finding of fact unless, in light of the record reviewed in its entirety, a two-step process is satisfied: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Hayes Fund, 193 So.3d at 1115-16. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Gaines, 297 So.3d at 778. Notably, reasonable persons frequently can and do disagree. Hayes Fund, 193 So.3d at 1116. Accordingly, where two permissible views of the evidence exist, the fact-finder's choice between them cannot be manifestly erroneous or clearly wrong. Henderson v. Nissan Motor Corp., 2003-606 (La. 2/6/04), 869 So. 2d 62, 69.
This is especially true when the trial court's factual findings are based on witness credibility. Gaines, 297 So.3d at 778. The manifest error-clearly wrong standard of review is based upon the recognition of the trial court's better capacity to evaluate live witnesses, as compared with the appellate court's access only to a cold record, but also upon the proper allocation of trial and appellate functions between the respective courts. Hayes Fund, 193 So.3d at 1116. In reaching its conclusions, the trier of fact need not accept all of the testimony of any witness as being true or false and may believe and accept a part or parts of a witness's testimony and refuse to accept other parts. Gaines, 297 So.3d at 778. Consequently, when a fact-finder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Robins v. Pirzadah, 2019-0523 (La.App. 1 Cir. 12/27/19), 292 So.3d 570, 573-74, writ denied, 2020-00043 (La. 4/27/20), 295 So.3d 396.
The rule that questions of credibility are for the trier of fact applies to an evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Hornbeck Offshore Operators, LLC v. Cross Group, Inc., 2016-0174 (La.App. 1 Cir. 10/31/16), 207 So.3d 1141, 1146, writ denied, 2016-2095 (La. 1/9/17), 214 So.3d 872. The opinions of expert witnesses are not binding on the trial court and are to be weighed the same as any other evidence. Gaines, 297 So.3d at 778. The trier of fact may accept or reject in whole or in part the opinion expressed by an expert. Harris v. State ex rel. Department of Transportation & Development, 2007-1566 (La.App. 1 Cir. 11/10/08), 997 So.2d 849, 866, writ denied, 2008-2886 (La. 2/6/09), 999 So.2d 785. The factual basis for an expert opinion determines the credibility of the testimony. Hornbeck, 207 So.3d at 1146-47. Finally, the trial court need not choose between competing expert testimony in forming its opinion where the facts alone provide a basis for the trial court's decision. Henderson v. Nissan Motor Corp., 2003-606 (La. 2/6/04), 869 So.2d 62, 69. With these legal precepts in mind, we review the testimony of the parties and witnesses offered at trial. See Gaines, 297 So.3d at 778.
Ms. Duncan testified she stopped to observe the stop sign posted before the north service road at the intersection of Rushmore and Florida. She stated she looked left, right, and left again before successfully crossing the westbound lanes of Florida and reaching the median. Ms. Duncan testified she came to a complete stop at the stop sign within the median between the east and westbound lanes of Florida, with her tire on the drain in the median, and looked to her right at the cars heading her way. Her vehicle was not extending into the east or westbound travel lanes, and she did not see Mr. Gauthier's vehicle before it collided with hers. On a scale of one to ten, Ms. Duncan described the significance of the impact as a ten. She stated that it caused her vehicle to spin and pushed it further down the median. Ms. Duncan also testified she heard an officer ask Mr. Gauthier if he was alright after the accident, and Mr. Gauthier replied affirmatively, adding “I just braced my knees on the dashboard.”
As noted above, Mr. Gauthier's testimony conflicted with Ms. Duncan's. He testified he was driving 45 mph in the left westbound travel lane on Florida prior to the accident. He asserted he was driving under the speed limit because of the amount of traffic that time of day and because he habitually drives slowly in wet weather out of caution. Mr. Gauthier testified he “vividly” remembered that Ms. Duncan was looking “[s]traight ahead” when she “darted out” in front of him, but he had not seen her before then. According to Mr. Gauthier, there was no way he could have stopped in time to avoid the impact. The photographs of the aftermath of the accident were taken on Mr. Gauthier's phone, but he was not aware of who took the photographs. Prior to trial, on an aerial photograph of the intersection, Mr. Gauthier had marked the location of the accident as occurring in the service road. At trial, Ms. Duncan and Mr. Gauthier both stated that Mr. Gauthier's mark was incorrect, because the accident occurred on Florida.
Officer Salassi of the Baton Rouge Police Department testified he was the investigating officer on the day of the accident. Officer Salassi received standard traffic crash investigation education while training to be a police officer. He reviewed his report from the day of the accident to refresh his memory, then confirmed that Mr. Gauthier told him Ms. Duncan pulled out in front of him and he could not avoid hitting her. Officer Salassi did not measure tire skid marks or take other measurements, did not identify a third-party eyewitness to the accident, did not know the specific point of impact for the accident, did not know the parties' speed at impact, and had no evidence to contradict Ms. Duncan's testimony that she was stationary in the median at the time of the accident. Officer Salassi confirmed Mr. Gauthier was the favored motorist within the westbound lanes of Florida and stated it was his opinion that Ms. Duncan caused the accident by proceeding through the westbound lanes of Florida without leaving Mr. Gauthier enough time to stop. However, Officer Salassi did not issue either party a citation, and he stated he would defer to an accident reconstructionist to determine exactly what happened.
As noted above, Mr. Garrick indicated that the damage to the vehicles, the skid marks in the grass median, and the final resting positions of the vehicles were consistent with Ms. Duncan's description of the accident. In forming his expert opinion in this matter, Mr. Carrick conducted a site inspection of the accident scene and took measurements of the roadway, the median, the lane widths, and the relevant distances, such as the distance between the possible impact location and the final location of the vehicles. He also reviewed photographs, statements, and the depositions of the parties. Mr. Carrick considered the weight and momentum of the vehicles and post impact speeds based on standard accident reconstruction and physics calculations. He created a site map based on the information and used photogrammetry and landmarks to place the vehicles within the site map.
Mr. Carrick testified that he made calculations considering both possible hypotheses for the accident - that Ms. Duncan was at rest on the drain in the median when the collision occurred, as she testified, and that Ms. Duncan was moving south into the left westbound lanes of Florida when the collision occurred, as Mr. Gauthier testified. He explained that in order to determine which hypothesis was correct, he employed different physics equations and accident reconstruction methods to determine which scenario was more consistent with science. Based on Mr. Carrick's review, the calculations were consistent with Ms. Duncan's car being at rest in the median at the time of the accident. The upper limit of Mr. Gauthier's speed at the time of the accident was 59 mph.
Diagrams illustrated that, according to Mr. Carrick's calculations, the skid marks in the grass median “matched well” with an impact occurring within the median as described by Ms. Duncan, and were “not possible“ with impact occurring in the left westbound travel lane as described by Mr. Gauthier. Thus, Mr. Carrick testified that he concluded Ms. Duncan's vehicle was in the median, on the drain, prior to the collision, and that there was no evidence indicating that Ms. Duncan's car was protruding into or obstructing the westbound lanes of Florida at the time of the accident. Mr. Carrick stated that Mr. Gauthier was more likely than not distracted and/or speeding, and the accident was caused when his vehicle left its lane of travel and impacted Ms. Duncan's.
Mr. Carrick also specifically explained that based on the amount of time it would have taken Ms. Duncan to accelerate from a complete stop at the first stop sign and reach Mr. Gauthier's travel lane, Mr. Gauthier would have had time to slow down and avoid the crash if he was paying attention or if he was traveling the speed limit. Mr. Carrick opined this would be the case even if Ms. Duncan darted out in front of Mr. Gauthier as he testified. However, if Mr. Gauthier was traveling at the upper limits of Mr. Carrick's calculations, or was distracted, he would not have had time to stop. Mr. Carrick further testified that because Mr. Gauthier testified he was attentive and saw Ms. Duncan's face prior to the accident, he concluded that speed was the factor that caused the accident.
On appeal, defendants maintain Mr. Carrick's testimony was flawed because it was based on an improper foundation and assumed facts not in evidence. Defendants raised this issue repeatedly at trial, asking Mr. Carrick how, given the “limited data” and “gaps in the information available to you,” Mr. Carrick could say that, more probably than not, Mr. Gauthier was speeding and the impact occurred in the median. In response, Mr. Carrick consistently disputed defendants' contention that the evidence was inadequate to support his conclusions. He pointed out the information available for accident reconstruction is always somewhat limited. Mr. Carrick also answered more specific questions regarding whether the evidence was sufficient to support his conclusions. For example, when defendants challenged Mr. Carrick for not testing the coefficient of friction at the accident site, Mr. Carrick explained that those numbers are not tested at the accident site in 99.99 percent of all crashes. Rather, the appropriate friction factors come from sources such as the Society of Automotive Engineers, universities, and the Accreditation Commission for Traffic Accident Reconstructionists. Defendants inquired as to Mr. Carrick's margin of error, and Mr. Carrick stated it “is typically within two feet.” Defendants also challenged Mr. Carrick's reliance on the skid marks, because he did not measure them during his site inspection or based on the scene photographs. Mr. Carrick explained that he did not measure the skid marks because they were not present at the time of his site inspection and they could not be measured from the photographs because the photographs did not show the skid marks in their entirety.
As set forth above, questions of credibility, and the trial court's factual findings based on witness credibility, including expert witness credibility, are subject to the manifest error standard of review. See Gaines, 297 So.3d at 778. Thus, we may not reverse unless our review of the record in its entirety establishes both that there was no reasonable factual basis for the trial court's conclusion, and that the finding was clearly wrong. Hayes Fund, 193 So.3d at 1115-16. Here, Ms. Duncan testified that she was stopped in the median between the east and westbound travel lanes of Florida, with no portion of her vehicle extending into the travel lanes, when Mr. Gauthier's vehicle collided with hers. Ms. Duncan also offered Mr. Carrick's expert testimony that the physical evidence of the accident was consistent with her version of how the accident occurred. While Mr. Gauthier's testimony contradicted Ms. Duncan's, defendants did not offer expert testimony to contradict Mr. Carrick's expert testimony. Moreover, while Officer Salassi testified it was his opinion Ms. Duncan caused the accident, Officer Salassi also stated he would defer to an accident reconstructionist. As the trier of fact, the trial court was entitled to accept or reject, in whole or in part, the testimony of any witness. Gaines, 297 So.3d at 778. The record establishes that two permissible views of the evidence exist in light of the conflicting witness testimony. Accordingly, we cannot say that there was no reasonable basis for the trial court's factual findings and credibility determinations. And, as a reasonable basis for the trial court's findings exists, we are precluded from finding that the trial court's choice between Ms. Duncan's version of events and Mr. Gauthier's version of events was manifestly erroneous or clearly wrong, even if convinced that, had we been sitting as the trier of fact, we would have weighed the evidence differently. Gaines, 297 So.3d at 778. Therefore, these arguments lack merit.
Finally, defendants argue that the trial court erred in admitting Mr. Carrick's animation, because it is inconsistent with the physical evidence and the testimony. However, we note that defendants objected to the animation at trial, arguing that it was demonstrative of Mr. Carrick's testimony, but was not “an actual reliable presentation of the accident scene and it does not go to prove the facts.” Following discussion of the objection and after the animation was played for the trial court, counsel for plaintiff stated that he would like to offer, file, and introduce the exhibit “as a part of the reconstruction prepared by Mr. Carrick in connection with his opinions and conclusions,” and counsel for defendants stated, “Subject to that illustrative, demonstration limitation, I have no objection.” Further, the record clearly reflects that the animation was considered for illustrative purposes only. Thus, this issue is not preserved for appeal in light of defendants' statement at trial that they did not object to the admission of the animation for illustrative purposes.6 This argument lacks merit.
For the foregoing reasons, that portion of the December 26, 2019 judgment awarding $1,1250.00 for the trial deposition fee of Dr. David Wyatt is amended to award $1,250.00 for the trial deposition fee of Dr. Wyatt. In all other respects, the December 26, 2019 judgment in favor of Raeven Duncan and against Brett Gauthier, Brett Gauthier d/b/a Brett Gauthier's Auto Sales, and State National Insurance Company, is affirmed as amended.
AMENDED, AND AFFIRMED AS AMENDED.
2. Throughout the record, this entity is alternately referred to as “Brett Gauthier's Auto Sales” and “Brett Gauthier d/b/a Brett Gauthier's Auto Sales.” For brevity and for consistency with our prior opinion in Duncan I, 332 So.3d 1193, we refer to it herein as Brett Gauthier's Auto Sales.
3. We note defendants' argument in brief that they offered evidence of three cases in which Mr. Carrick's opinions were disqualified. However, defendants did not offer and introduce pleadings from a third case into the record.
4. In the first set of pleadings offered by defendants, in the matter of Lee v. Jones, 2011-2678 (E.D. La. 2013) 2011 WL 12230857, the Eastern District admitted one of Mr. Carrick's reports, which was completed “after [Mr.] Carrick received clarification on [the plaintiff's] contentions regarding how the accident occurred,” though certain paragraphs were excluded because they either “recit[ed] the testimony of others or [told] the jury how it should resolve the disputed facts ․ [and were] not the product of any of [Mr.] Carrick's specific expertise but rather of advocacy.” Mr. Carrick's other reports were excluded because they were completed before the plaintiff clarified her contentions, and therefore, “[were] simply not relevant.” In the second set of pleadings offered by defendants, in the matter of Sneeze v. Nissan North America, Inc., 2014-1648 (E.D. La. 2015), a motion in limine argued Mr. Carrick's opinions were inadmissible because he lacked the requisite qualification to testify to industry or regulatory loading standards and his accident reconstruction methodologies are unreliable. A minute entry reflected that the motion was granted for reasons orally stated, but there was no indication, in the minute entry or otherwise, of what those reasons were.
5. We note that defendants also sought to impeach Mr. Carrick on the basis of the previous federal court rulings. However, defendants asserted that if Mr. Carrick was not excluded on the basis of the previous federal court rulings, the impeachment evidence should “[go] to the weight” given to his testimony. The trial court explicitly stated it would “give [the impeachment evidence] the proper weight.”
6. Additionally, we note this was a bench trial, and the trial court accepted and the parties agreed that the animation was “illustrative” in nature and therefore had no evidentiary value, and having already determined that the record before us is otherwise sufficient to support the trial court's holding, we note that consideration of this assignment of error would not have affected the outcome of this case.
McDonald, J. concurs
Response sent, thank you
Docket No: 2022 CA 0444
Decided: December 22, 2022
Court: Court of Appeal of Louisiana, First Circuit.
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