Walking Drivers: A “Sudden” Defense to Rear-end Liability

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.

It is well-established that a client in legal malpractice shall have no greater rights against their attorney than they had against the original defendant. That is, until the recent decision by the Supreme Court in Ewing v. Westport Insurance Corporation, 20-00339 (LA. 11/19/20), 2020 WL 6789490 where the Louisiana Supreme Court held that the “collectibility“ of the underlying judgment against the defendant is neither part of the plaintiff’s burden of proof nor the proper subject of an affirmative defense.

In Ewing, the defendant/attorney fax-filed a petition for damages but failed to forward the original petition within seven days as required by statute. As a result, the claim he sought to advance on behalf of Elaine Ewing prescribed. Ewing sued her attorney and his insurer.

Prior to trial, the tortfeasor testified that he would have filed for bankruptcy had an excess judgment been entered. On this basis, the defendants obtained a motion for summary judgment establishing that the underlying tortfeasor would have been unable to pay any amount above the $30,000 in available insurance coverage. Following trial, an award of $30,000 was entered in favor of the plaintiff and the plaintiff appealed.

The appellate court reversed citing to the decision in Rodriguez v. Traylor, 468 So.2d 1186, 1188 (La. 1985) which held that “the wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages.“

The Supreme Court upheld the appellate opinion. In the analysis, Chief Justice Johnson on behalf of the majority also cited to the Rodriguez decision for the proposition that the wealth of the tortfeasor is not relevant to damages. The majority acknowledged that a majority of courts nationwide hold that the collectibility of a judgment is an essential element of a plaintiff’s legal malpractice case. It also observed “a growing trend” in other states to allow the defendant/attorney to plead collectability as an affirmative defense. Nevertheless, the Supreme Court in Ewing chose to follow neither position.

The defendants in Ewing did not argue that collectibility was part of the plaintiff’s burden. However, they did assert an affirmative defense on this basis. In rejecting this defense, the Ewing court found that nothing in statutory law of Louisiana limits damages based upon the collectibility of a judgment against a particular tortfeasor. In Ewing, it was established that the tortfeasor would have been immediately unable to pay an excess judgment. Nevertheless, the majority highlighted that a money judgment is valid for 10 years and may be revived for successive 10-year periods. As such, the court concluded that the money judgment has intrinsic value, regardless of immediate collectibility. To quote the majority, “impecunity is a snapshot in time.”

The concurring opinion by Justice Weimer reasons that there may be certain and rare cases where the underlying tortfeasor is truly judgment proof. In that circumstance, he writes that summary judgment in favor of the defendant may be appropriate but not under the record before the court.

Writing for the dissent, Justice Crain observed: “Thirty states have determined collectibility is relevant in a legal malpractice action. No state has reached a contrary conclusion, until now.” According to the majority, the absence of any statute making collectability a relevant consideration mandated the result under our civilian traditions. Justice Crain disagreed and argued that the majority opinion is inconsistent with the Code of Evidence articles which generally allow the admissibility of relevant evidence such as an inability to pay. La. L.C.E. art. 402. In support of his position, Justice Crain gave a hypothetical scenario involving an insolvent, uninsured driver who rear-ends a world-class professional athlete rendering him a paraplegic, resulting in damages and $50 million. About this hypothetical, he states:

“What did the plaintiff lose, or what harm did the lawyer cause the plaintiff, when the lawyer failed to preserve the claim against the insolvent, uninsured driver? The lawyer did not cause the paraplegia, nor did he caused a loss of $50 million, as that money was clearly uncollectible.“

To Justice Crain, the determinative question is the value of the lost judgment.

Insofar as the majority and concurring opinions highlight the absence of any statutes to support their conclusions, it would not be surprising for this issue to be considered by the legislature in coming years.

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 Andrew "Drew" Blanchfield whose practice also includes professional liability defense.

Uninsured/underinsured motorist coverage (“UM coverage”) is included in all automobile liability policies by Louisiana law unless the insured “rejects [UM] coverage, selects lower limits, or selects economic only coverage.” What constitutes an adequate rejection of UM coverage has been the crux of countless lawsuits across the state. Recently, in Havard v. Jeanlouis, et al, 2021-C-00810 (La. 6/29/22), the Louisiana Supreme Court examined the validity of a corporate representative’s signature in the context of execution of a UM waiver form. Louisiana courts have found that without a valid signature, UM coverage generally may not be waived.

The Havard court recognized that a corporation cannot “sign” its own name, and that an authorized representative must act on its behalf. Under the facts of this case, an administrative assistant attempted to execute a UM waiver form at the corporate representative’s direction with a stamp of the representative’s signature. The plaintiff argued that the use of the stamp did not meet the requirements for proper execution of the UM waiver form at issue.

Considering these facts, the court noted that Louisiana law of mandate provides that “when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.” The court continued: “Accordingly, where one individual signs a UM form on behalf of another individual and authority is not conferred by law, our Civil Code requires this authority be in writing.”

While the corporate representative in Havard verbally instructed his administrative assistant to complete the waiver with his signature stamp, no written mandate existed between the representative and the assistant to confirm this authority. Absent the written mandate, the court disregarded the express intention of the corporate representative and held the form invalid.

The court recognized the impracticality of its holding. However, it also commented “Concerns over the practical impact within the insurance industry in scrutinizing stamped signed UM forms are unavailing. Inconvenience is not absurdity. The insurer has the authority, opportunity, and responsibility to assure the UM form is completed properly. … Practical considerations regarding increased due diligence requirements are matters of policy best directed to the legislature.”

Cases involving UM waiver forms are fact-sensitive. Havard involved unique facts where the company’s authorized agent did not sign the UM waiver form personally. While Havard may be limited to its facts, it reminds that proper execution of a UM waiver form is necessary for UM coverage to be properly waived.

Louisiana Supreme Court Provides Updated Guidance on Execution of UM Waiver Forms