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Pratt v. Culpepper

Court of Appeal of Louisiana, Second Circuit

February 27, 2015

MICHAEL W. PRATT, Plaintiff-Appellant

Page 617

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. 2011-2136. Honorable H. Stephens Winters, Judge.

EDDIE CLARK & ASSOCIATES, By: Eddie M. Clark, Co-Counsel for Appellant.

PAUL LOY HURD, Co-Counsel for Appellant.

DAVENPORT, FILES & KELLY, By: Carey B. Underwood, Counsel for Appellees.



Page 618


The plaintiff, Michael W. Pratt, appeals from a jury verdict and judgment rejecting his personal injury claims arising out of a rear-end auto accident. The plaintiff argues that the trial court made several evidentiary errors that denied him a fair trial. He urges that the verdict and judgment must be vacated and that this court should render a judgment for damages in his favor. For the following reasons, we affirm.


On July 20, 2010, Pratt, in a 2005 Chrysler sedan, was stopped at a red light on Desiard Street in Monroe. The defendant, Brett O. Culpepper, in a 2005 Nissan Pathfinder, was stopped behind him. Culpepper was distracted by some paperwork in his car and noticed that the traffic around him was beginning to move. He began to move and then realized that Pratt was still stopped in front of him. Culpepper applied his brakes, but his vehicle struck Pratt's vehicle from behind. According to Culpepper, the damage to both vehicles was slight. Culpepper claimed that Pratt said at the scene that he was not injured. The police officer investigating the accident, Dwayne Crowder, was an experienced traffic investigator. He stated that Pratt denied being hurt or injured and said at the scene there was no need for medical attention.

In July 2011, Pratt filed suit against Culpepper and his insurer, State Farm Mutual Automobile Insurance Company, and Oakley Medical LLC, Culpepper's company, alleging that Culpepper was completely at fault in causing the accident.[1] Pratt alleged in his petition that his vehicle was struck [49,627 La.App. 2 Cir. 3] from behind by Culpepper's vehicle " with tremendous force." At trial, he described it as a " solid hit." Pratt claimed that he suffered significant injuries to his back, head, and neck. Pratt was treated by Dr. Dan A. Holt, a chiropractor, and Dr. Vincent R. Forte of Louisiana Pain Care. He claimed that his back injuries necessitated radiofrequency lumbar medial branch neurotomies at four levels of his lumbar spine. He also claimed his injuries required him to undergo left and right lumbar medial branch blocks at four levels of his lumbar spine. He sought damages for past and future loss of enjoyment of life, inconvenience, embarrassment, past and future pain and suffering, mental anguish, emotional distress, medical expenses, loss of household services, loss of earnings, loss of earning capacity, disability, physical impairment, lost vacation time, lost fringe benefits, prescription costs, medical related expenses, and all noneconomic damages.[2]

Page 619

The defendants answered and disputed Pratt's version of the event. They asserted that Culpepper's vehicle merely " bumped" into the rear of Pratt's vehicle, and because the impact was so minimal, it could not have caused the extensive injuries claimed by Pratt. Partial summary judgment was granted by the trial court in February 2012, finding that Culpepper was the cause of the accident and that State Farm provided coverage. The judgment expressly reserved the defendants' right to inquire into causation [49,627 La.App. 2 Cir. 4] and/or damages. Another motion for partial summary judgment by Pratt, claiming that the accident caused his neck and back injuries, was denied.

The parties filed numerous pretrial motions in limine which were ruled upon prior to trial and in the context in which they were presented at the time they were argued. These motions were considered by one judge of the Fourth Judicial District Court. A jury trial began in July 2013, but the trial was upset before the jury was sworn due to the unexpected illness of one of the attorneys. The second jury trial, held in February 2014, was presided over by a different judge from that district.[3]

The jury found that Pratt failed to prove by a preponderance of the evidence that the accident caused him to suffer physical injuries. Judgment was rendered in favor of the defendants, dismissing Pratt's claims. Pratt filed motions for judgment notwithstanding the verdict and for new trial, which were denied. The plaintiff now appeals.

Before we discuss the evidentiary issues raised on appeal, we note that this litigation has been very contentious with myriad motions and objections filed by both sides. We have conducted an exhaustive review of the voluminous record and exhibits. Both lower court judges who presided over the protracted proceedings exhibited a great amount of patience, legal acumen, and a desire to be fair to both sides. In addition to the matters complained of on appeal by Pratt, the record is replete with numerous rulings which were adverse to the defense. These are not before us on appeal. Many of the alleged errors complained of by Pratt were actually the result of [49,627 La.App. 2 Cir. 5] some rather unusual trial strategies employed by Pratt's counsel. Pratt's argument on appeal that he was denied his right to a fair trial and that the jury verdict must be vacated is simply not borne out by this record.


Pratt argues on appeal that the trial court erred in allowing documentation, testimony, and counsel argument concerning a dispute in the 1990s between Dr. Holt and the Louisiana State Board of Chiropractic Examiners (" LSBCE" ) to be admitted into the record before the jury.

Dr. Holt became Pratt's treating chiropractor after the accident. His treatment of Pratt began on August 2, 2010. Dr. Holt had been suspended by the LSBCE in 1997, allegedly for overtreatment of Medicaid patients. In September 2012, Pratt filed a motion in limine seeking to prohibit the defendants from using any statement or reference about any disciplinary action taken against Dr. Holt by the LSBCE, or any consent judgment entered into by Dr. Holt regarding a plea of nolo contendere to the administrative charges, citing La. C.E. art. 410(A)(2).

Culpepper argued this information was relevant under the circumstances of this

Page 620

case, which presented a low-impact accident with high medical expenses. Further, some issues pertaining to the relationship between Pratt's attorney and some of the medical care providers in this case, which included discounts provided for high-volume liability payers and/or agreements to forgo payment for medical services until the conclusion of a patient's lawsuit, also arose. Culpepper contended that Dr. Holt's license was suspended for Medicaid billing fraud and for overtreatment of patients [49,627 La.App. 2 Cir. 6] and this information was relevant to Dr. Holt's credibility as a witness who would testify about his treatment, billing procedures, and practices in this case.

Pratt's motion in limine was denied. The trial court observed that Pratt was involved in a low-impact accident and claimed high medical expenses, some of which were billed by Dr. Holt. The trial court found that the jury needed to hear the facts and make a determination whether the care given was appropriate. Therefore, Dr. Holt's credibility and qualifications as an expert would be essential issues at trial. The trial court found that the nolo contendere rule did not apply here because the plea was entered in an administrative proceeding, not a court proceeding.

Pratt filed an emergency motion to reconsider the denial which was rejected by the trial court. Pratt then filed a writ application with this court which was denied on January 3, 2013, on the showing made. On the day that the trial on the merits began, Pratt reurged the motion in limine. The trial court refused to reconsider the motion, stating that nothing had changed; it adopted the prior judge's ruling on the motion.

Legal Principles

[49,627 La.App. 2 Cir. 7] " Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible. La. C.E. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time. La. C.E. art. 403.
A. General rule. Except as otherwise provided in this Article, evidence of the following is not, in any civil or criminal proceeding, admissible against the party who made the plea or was a participant in the plea discussions:
(2) In a civil case, a plea of nolo contendere[.]
A. Who may attack credibility. The credibility of a witness may be attacked by any party, including the party calling him.
B. Time for attacking and supporting credibility. The credibility of a witness may not be attacked until the witness has been sworn, and the credibility of a witness may not be supported unless it has been attacked. However, a party may question any witness as to his relationship to the parties, interest in the lawsuit, or capacity to perceive or to recollect.
[49,627 La.App. 2 Cir. 8] C. Attacking credibility intrinsically. Except as otherwise provided by legislation, a party, to attack the credibility of a witness, may examine him concerning any matter having a reasonable tendency

Page 621

to disprove the truthfulness or accuracy of his testimony.
D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the ...

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