Case: 11-30467 Document: 00511747103 Page: 1 Date Filed: 02/03/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2012
No. 11-30467
Summary Calendar Lyle W. Cayce
Clerk
IRIS FAIR; ANDREW FAIR; ANITA WRIGHT,
Plaintiffs-Appellants,
versus
BART ALLEN; GATOR SIGN COMPANY;
NATIONWIDE MUTUAL INSURANCE COMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Louisiana
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge.
Iris Fair, Andrew Fair, and Anita Wright were involved in a vehicular acci-
dent with Bart Allen, an employee of Gator Sign Company, whose vehicle hit
plaintiffs’ car from behind when they stopped to make a left turn. Plaintiffs’
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motion for partial summary judgment on liability was granted, but a jury trial
was conducted on damages, resulting in a verdict in favor of the plaintiffs for
$38,500 ($21,000 to Iris Fair, $17,500 to Anita Wright, and $0 to Andrew Fair).
Plaintiffs claim the district court should have granted their motion for new trial.
We affirm.
I.
This case hinges on whether the jury was allowed to find the defendants’
expert more credible than plaintiffs’. Each plaintiff testified, and the parties
presented numerous treating physicians.
Iris Fair complained of pain in her back, neck, left shoulder, and left neck
muscle and numbness in the left side of her face. She was treated by a chiro-
practor at Chrio Plus, then by Dr. Kenneth Vogel at SoleCARE. He first recom-
mended conservative treatment following an initial MRI that showed mostly nor-
mal results with some lumbar herniation or degeneration. Iris Fair later came
back complaining that the pain persisted. Vogel found moderate muscle spasms,
then conducted a discogram and cervical myelogram. The myelogram was nor-
mal, but Vogel offered the cervical neurotomy and IDET annuloplasty. Fair has
not worked since the procedure Vogel performed; she still complains of pain, but
other diagnostics that have been conducted since then came back normal.
Dr. Vincent Forte, a pain management expert, also testified for Iris Fair,
saying she reported constant pain. Her physical exam was normal except for
decreased Achilles reflex, numbness and tingling in lower extremities, and less
sensitivity to pinpricks. An MRI of her lumbar spine showed disc bulging and
desiccation, but her cervical MRI was normal. There were also muscle spasms.
A steroid injection temporarily relieved the pain. Forte performed branch nerve
block injections (a diagnostic procedure), but after the temporary anesthetic
wore off, pain returned. He later performed a neurotomy.
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Finally, Tammy Steward-Dixon, a family nurse practitioner at SoleCARE,
testified that she treated Iris Fair after the accident until she began pain man-
agement. Steward-Dixon said that Fair had consistent pain throughout the
treatment and said her pain was not just subjective.
Wright went to Homer Memorial Hospital after the accident complaining
of back and neck pain. She then went to SoleCARE and Chiro Plus. When Vogel
saw her, she complained of neck and back pain and tingling and numbness in
her hands. Vogel testified that he found spasms on her neck and lower back,
numbness in her fingers, some scoliosis, and joint pain. After trying conserva-
tive care, he performed a lumbar discogram and myelogram. The myelogram
came back normal, but the discogram showed herniation and a fissure.
A facet arthrogram also showed joints on Wright’s right side were causing
pain. Vogel performed IDET annuloplasty to repair the disc. After that, most
symptoms subsided, but Wright still had spasms, and he told her not to lift,
push, or pull heavy objects. She still has pain, but spasms are reduced, her neck
is normal and her scoliosis gone. Vogel said that although the MRI had been
normal, the discogram confirmed a problem, and MRIs are only 80% accurate.
Dr. John Ledbetter, a pain management expert, testified that after going
back to work following the surgical procedure by Vogel, Wright had muscular
pain, back and shoulder pain, headaches, and blurred vision. Ledbetter per-
formed a neurotomy procedure to burn the nerves.
Stewart-Dixon testified that Wright was in pain during her treatment. She
said the pain was consistent throughout the entire period of treatment.
The defendants’ medical expert, Dr. Robert Holladay, testified that the
procedures performed on the plaintiffs were not valid. He opined that disco-
grams are not proper diagnostic tools and that other injection procedures, such
as IDET annuloplasty, that were done on the plaintiffs should not be performed.
Holladay grounded that assessment on studies he had read that he briefly
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described and on the acceptance of those studies by other doctors. Based on his
examinations of the medical record, the plaintiffs, and the photos of the accident,
he instead determined that plaintiffs had suffered soft-tissue injuries.
II.
Plaintiffs and the district court cite opposing precedent from this court
regarding the correct standard for a motion for new trial. The district court
applied federal standards under Federal Rule of Civil Procedure 59, citing Jones
v. Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir. 1989), which says that in
diversity cases, “state law determines the type of evidence that must be produced
to support a verdict but the sufficiency or the insufficiency of the evidence in
relation to the verdict is indisputably governed by a federal standard” (internal
quotation marks omitted). The plaintiffs cite Foradori v. Harris, 523 F.3d 477,
498 (5th Cir. 2008), for the opposing proposition that the new-trial standards of
Louisiana should have been applied: “The Supreme Court in Gasperini [v. Cen-
ter for Humanities, 518 U.S. [415,] 419,434 [(1996)] . . ., held that, in an action
based on state law but tried in federal court by reason of diversity of citizenship,
a district court must apply a new trial or remittitur standard according to the
state’s law controlling jury awards for excessiveness or inadequacy. . . .”
Plaintiffs moved for additur and, failing that, new trial. Although both
Jones and Foradori could be applied to this situation, Foradori, coming after an
intervening Supreme Court decision, controls.1 Therefore, the district court
erred in applying the federal standard; Louisiana law applies.
Although denial of a motion for new trial is reviewed for abuse of discre-
tion, Munn v. Algee, 924 F.2d 568, 575 (5th Cir. 1991), the plaintiffs argue that
1
Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 376 (5th Cir. 2010) (“[A] panel of this court
can only overrule a prior panel decision if such overruling is unequivocally directed by controll-
ing Supreme Court precedent.”) (internal quotation marks omitted).
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because the district court’s ruling was based on its view that the federal stan-
dard applies, de novo review is proper.2 Yet, even under de novo review, the ver-
dict had adequate support in the record, so the standard of review makes no dif-
ference here.
III.
Despite permitting a trial court to review the jury’s credibility determina-
tions, Louisiana gives the jury high deference. Louisiana provides a new trial
“[w]hen the verdict or judgment appears clearly contrary to the law and the
evidence,” LA. CODE CIV. P. art. 1972, and permits the court to grant a new trial
“in any case if there is good ground therefor, except as otherwise provided by
law,” id. art. 1973. When granting a new trial, the court can evaluate the evi-
dence, draw it’s own inferences and conclusions, and determine whether the jury
“erred in giving too much credence to an unreliable witness.” Joseph v. Brous-
sard Rice Mill, Inc., 772 So. 2d 94, 104 (La. 2000). Yet, Louisiana courts still
accord jury verdicts great deference.3 Therefore, although the Louisiana Code
explicitly allows the district court to overturn a verdict that gives too much cred-
2
See Munn, 924 F.2d at 575 (“[W]hen the district court’s ruling is predicated on its view
of a question of law, it is subject to de novo review.”).
3
One court explained,
[T]he discretionary power to grant a new trial must be exercised with considera-
ble caution, for a successful litigant is entitled to the benefits of a favorable jury
verdict. Fact finding is in the province of the jury, and the trial court must not
overstep its duty in overseeing the administration of justice and unnecessarily
usurp the jury's responsibility. A motion for new trial solely on the basis of
being contrary to the evidence is directed squarely at the accuracy of the jury’s
factual determinations and must be viewed in that light. Thus, the jury’s ver-
dict should not be set aside if it is supportable by any fair interpretation of the
evidence.
Guillory v. Lee, 16 So. 3d 1104, 1130 (La. 2009) (quoting Davis v. Wal-Mart Stores, Inc., 774
So. 2d 84, 93 (La. 2000)).
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ibility to a non-believable witness, that can be applied only in extreme
situations.
The plaintiffs attack the verdict on three grounds. First, they rely on two
presumptions: (1) the Lucas/Housely presumption and (2) the treating physicians
presumption.
The Lucas/Housely presumption establishes a causal connection between
an injury plaintiff suffered and an accident “if before the accident the injured
person was in good health, but commencing with the accident the symptoms of
the disabling condition appear and continuously manifest themselves after-
wards, providing that the medical evidence shows there to be a reasonable possi-
bility of causal connection between the accident and the disabling condition.”4
Though plaintiffs argue that the presumption was met by their own testimony
about being healthy before and the medical expert’s testimony about their being
injured afterwards, they never succeeded in establishing the prerequisites for
the presumption, which requires the symptoms of a disabling condition to appear
and to manifest continuously; then it presumes a causal relationship.
The dispute is whether such a disabling condition exists, not whether
plaintiffs’ injuries came from the accident. Although they and their experts tes-
tified that they were disabled and severely injured, defendants argued that the
plaintiffs suffered nothing more than soft tissue damage. Because the jury
awarded damages consonant with only soft tissue damage, the jury apparently
believed the defense. If the jury was wrong to do so, then, it must be wrong for
reasons other than the Lucas/Housely presumption, because that presumption
does not make injuries presumptively disabling.
The presumption in favor of treating physicians helps the plaintiffs, but
it is not enough. In Louisiana, the diagnoses and opinions of a treating physi-
4
Maranto v. Goodyear Tire & Rubber Co., 650 So. 2d 757, 759, 761 (La. 1995) (quoting
Housley v. Cerise, 579 So. 2d 973, 980 (La. 1991)) (internal quotation marks omitted).
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cian are entitled to more weight than are those of doctors who examined the
plaintiff for only litigation purposes. Schouest v. J. Ray McDermott & Co., 411
So. 2d 1042, 1044 (La. 1982). The plaintiffs use this to argue that because their
experts testified that they were injured and needed the treatments they
received, the jury had to accept their doctors’ testimony over that of the defense
expert. But the presumption does not give a treating physician unlimited credi-
bility. Instead, the presumption means only that when considering who is more
credible, the fact that treating physicians as a class are more credible must be
given appropriate weight.
There was ample evidence from which the jury could have determined that
the defense’s doctor was still more credible. First, the jury heard live testimony
from battling experts and evidence that though some diagnostic tests and exam-
inations showed injuries, others came back negative. The defendants’ expert
testified that the positive diagnostics used were unreliable and that the tests
that came back negative should be trusted. Also, the jury saw photographs of
the accident, from which it could determine that the crash was minor. A fair
interpretation of that evidence could lead a jury to believe Holladay that the
injuries were just soft-tissue damage.
IV.
The plaintiffs also attempt to have this court disregard Holladay’s tes-
timony by arguing that (1) it is too biased to be considered; (2) he did not provide
support for his statements; and (3) Louisiana courts have determined the tests
and treatments at issue in this case to be valid as a matter of law. In Ernst v.
Taylor, 17 So. 3d 981 (La. 3d Cir.), writ denied, 17 So. 3d 977 (La. 2009), the
defendants brought an expert from Oregon to testify that the injury the plaintiff
claimed to have suffered was no longer a diagnosis recognized by the medical
profession. The expert had testified for a plaintiff in only two out of hundreds
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of cases. Id. at 988. His testimony also showed no basis or scientific support for
his claims other than his own testing and his claim that other doctors supported
his conclusions. Id. Other courts in other states had also recognized that he had
a reputation for being hired to refute these claims. Id. In a few other cases, a
doctor’s testimony was prohibited after the court recognized a well-documented
history of advocacy against plaintiffs.5
Here, there is no such well-documented pattern of bias by Holladay
against injured plaintiffs. He was not flown across the country, and the court
has not found a similarly extensive pattern of advocacy in support of defendants.
Finding an expert witness so biased that his testimony cannot be considered
regardless of his credentials is not done lightly, and Holladay has not demon-
strated the same level of malignance toward injured plaintiffs that it took for
Louisiana courts to exclude experts in those cases.
The plaintiffs argue that Holladay’s opinion testimony was unsupported
and so should not be considered. In Viterbo v. Dow Chemical Co., 826 F.2d 420,
422 (5th Cir. 1987), we explained that although the basis of an expert’s opinion
usually goes to the weight, not the admissibility, of the testimony, “[i]n some
cases, however, the source upon which an expert’s opinion relies is of such little
weight that the jury should not be permitted to receive that opinion. Expert
opinion testimony falls into this category when that testimony would not actu-
ally assist the jury in arriving at an intelligent and sound verdict.” In that case,
the expert’s opinion that Tordon 10k caused plaintiff’s injuries was based on
(1) a medical history that missed critical information on other possible causes,
(2) tests that showed a possible toxic reaction but did nothing to identify the
5
White v. State Farm Mut. Auto. Ins. Co., 680 So.2d 1, 3 (La. 3d Cir. 1996); see also
Rowe v. State Farm Auto. Ins. Co., 670 So.2d 718, 723 (La. 3d Cir.) (finding that court erred
in not allowing plaintiff to present the expert’s bias, leading to reversal), writ denied, 673 So.
2d 611 (La. 1996).
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cause, and (3) a study showing that rats exposed to large amounts of Tordon 10k
got tumors, but without accounting for the different reactions to chemicals in
humans versus rats or providing evidence the plaintiff was exposed to compara-
ble amounts of the chemical. Id. at 423-24. The court determined that such an
unsupported opinion was inadmissible because it does not objectively assist the
jury in reaching a verdict. Id. at 424.
Although an expert’s testimony must be reliable to be admissible, the
opposing party must expose that lack of reliability. Holladay did not provide a
completely unsupported opinion as did the expert did in Viterbo. When Holladay
testified that discograms, IDET, and other injection procedures were not gener-
ally accepted, he cited a study by Dr. Chou, providing the year it was published,
the journal, and a basic description of the study. He also mentioned that the
American Academy of Orthopedic Surgeons had looked at that study and
adopted it as its official policy, including it on its website to show that there is
not good medical evidence to support those injection procedures.
“It is the responsibility of opposing counsel to explore the factual basis for
the opinion and thus, determine its reliability.” Brown v. City of Madisonville,
5 So. 3d 874, 880 (La. App. 1st Cir. 2008), writ denied, 1 So. 3d 498 (La. 2009).
Because Holladay provided support for his position that the procedures used on
the plaintiffs were invalid, and plaintiffs did not demonstrate sufficient support
was lacking, his expert testimony was properly admitted.
Finally, the argument that Louisiana courts have determined IDET annul-
oplasty, discogram, and neurotomy to be legitimate as a matter of law conveys
a fundamental misunderstanding of medical procedures and their evaluation in
court. Louisiana courts cannot determine that these medical procedures are
valid as a matter of law in all situations, because their validity in any particular
instance is not a legal matter but a factual one. The validity and appropriate-
ness of a medical diagnostic tool or procedure is not absolute; it can be valid in
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one situation and invalid in another.
For example, some tools are better at showing certain types of injury than
others. A doctor must often diagnose a patient based on the entirety of his medi-
cal evaluation, not from one test alone. Even if these procedures have been
found valid in previous cases, each patient’s medical situation is different, so
previous courts’ findings that the procedures were valid does not necessarily
mean they were appropriate here. That is a factual matter the jury had to
resolve. The evidence allowed the jury to determine that the tests that came
back negative, such as the MRIs, were more reliable in this situation, and that
decision was its to make.
In summary, because the district court properly allowed the jury to con-
sider Holladay’s testimony, and with that testimony the record contains ade-
quate support for the verdict, we AFFIRM the judgment based on the damage
award.
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