Susan Pollard Versus 21st Century Insurance Company A/K/A Farmers Insurance Group and Roy Cefalu
21-C-48
| La. Ct. App. | Dec 23, 2021Background:
- On June 22, 2015 Pollard was rear-ended by Cefalu; the parties stipulated liability and Pollard's lack of fault, leaving only damages and medical causation for trial.
- Pollard moved pretrial to exclude defendants’ expert Dr. Charles E. Bain under Daubert/La. C.E. art. 702; the trial court denied the motion and later qualified Bain in accident reconstruction, biomechanics, medicine, and occupant kinematics.
- Bain: nuclear engineering degree (1974), M.D. (1983, Canada), practiced emergency/family medicine until 2003, co‑owner of Biodynamics Research Corp. He performed exemplar crash testing and used prior BRC test data and delta‑V estimates rather than inspecting the actual vehicles or interviewing the plaintiff.
- At trial Bain opined Pollard’s collision forces were too low to cause structural cervical/shoulder injury or TBI; the jury found Pollard suffered no injuries and returned a defense verdict.
- On appeal the Fifth Circuit found Bain’s methodology unreliable under La. C.E. art. 702 (as characterized by Daubert and Louisiana precedent), reversed the trial court’s decision to admit his testimony, vacated the judgment, and remanded for a new trial; the court pretermitted the other assignments of error as moot.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Dr. Bain's expert testimony (accident reconstruction/biomechanics/medical causation) | Bain lacks relevant training/certification, used speculative/inadequate methodology (exemplar tests, no vehicle inspection, no plaintiff interview), so testimony fails La. C.E. art. 702 | Bain has extensive experience, uses accepted methods and test data from BRC that assist the trier of fact | Trial court abused discretion: Bain's opinions were based on inadequate, speculative assumptions and unreliable methods; exclusion should have been granted. Case remanded for new trial. |
| Admission of surveillance video | Video prejudicial/improperly admitted | Video probative | Not reached on the merits — appellate court pretermitted remaining issues after ruling on expert; remanded for new trial. |
| Jury instruction re: irrelevance of force-of-impact | Force of impact should not be determinative of causation; requested limiting instruction | Defendants relied on force-of-impact evidence via Bain | Not decided on the merits — pretermitted as remand ordered. |
| Other trial‑management complaints (juror language barrier; limits on examinations; voir dire limits; JNOV/new trial) | Various procedural errors deprived Pollard of fair trial | Rulings within trial court discretion | Not decided on the merits — pretermitted/moot on remand. |
Key Cases Cited
- Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (gatekeeping standard for admissibility of expert testimony)
- Cheairs v. State ex rel. Dep’t of Transp. & Dev., 861 So.2d 536 (trial court gatekeeping role under Louisiana law)
- Wegener v. Lafayette Ins. Co., 60 So.3d 1220 (when remand is appropriate over de novo review)
- Melerine v. Tom’s Marine & Salvage, LLC, 315 So.3d 806 (discussing appellate review and remand in light of erroneous evidentiary rulings)
- Cleland v. City of Lake Charles, 840 So.2d 686 (remand where expert biomechanics testimony lacked demonstrated reliability)
- Godchaux v. Peerless Ins. Co., 140 So.3d 817 (excluding Bain where force‑of‑impact methodology was unreliable)
- Schexnayder v. Exxon Pipeline Co., 815 So.2d 156 (trial court discretion in qualifying experts)
- Succession of Olsen, 290 So.3d 727 (standard for disturbing expert‑qualification rulings)