ZACHARY D. RELAN
THE STATE OF LOUISIANA THROUGH THE DEPARTMENT OF HEALTH AND HOSPITALS AND LINDSAY L. PANTALEO
APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF
ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 66, 434,
DIVISION "B" HONORABLE E. JEFFREY PERILLOUX, JUDGE
COUNSEL FOR PLAINTIFF/APPELLANT, ZACHARY D. RELAN Daniel J.
COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, THE STANDARD
FIRE INS CO (2ND APPELLANT) John W. Martinez
COUNSEL FOR DEFENDANT/APPELLEE, STATE OF LOUISIANA DEPARTMENT
OF HEALTH AND HOSPITALS AND LINDSAY L. PANTEALEO Jeffrey M.
Landry W. Bartlett Ary
composed of Judges Fredericka Homberg Wicker, Stephen J.
Windhorst, and John J. Molaison, Jr.
J. MOLAISON, JR. JUDGE
Zachary Relan, and Intervenor, The Standard Fire Insurance
Company, appeal the trial court's ruling that denied
their respective motions for new trial in this automobile
accident case. For the reasons that follow, we affirm.
October 14, 2013, appellant, Zachary Relan
("Relan") was a passenger in a vehicle traveling on
U.S. Highway 51 though St. John Parish for the purpose of his
employment with Shuffle Master, Inc., when that vehicle was
struck by a car driven by Lindsay L. Pantaleo
("Pantaleo"), who was acting within the course and
scope her employment with the State of Louisiana through the
Department of Health and Hospitals ("DHH"). Relan
timely filed a petition for damages on April 17, 2014, in the
Fortieth Judicial District Court, against DHH and Pantaleo.
On July 8, 2014, Relan filed a motion for partial summary
judgment on the issue of the defendants' liability for
the accident at issue, which the trial court granted on
September 10, 2014. On October 20, 2014, The Standard Fire
Insurance Company ("Standard") filed a petition for
intervention alleging that, as Shuffle Master, Inc.'s
workers compensation insurer, it had paid benefits to Relan
and was entitled to reimbursement. After several continuances,
a jury trial in the matter, solely on the issue of damages,
began on August 14, 2017, and lasted through August 16, 2017.
At the conclusion of trial, the jury determined that Relan
had not suffered any injuries as a result of the October 14,
2013 accident, and accordingly did not award any damages.
August 30, 2017, Relan filed a motion for new trial which
alleged, in summary, that the defendants had omitted a
document entitled "New Problem Questionnaire" from
a joint exhibit of Relan's medical records introduced at
trial. Relan argued in his motion that the exclusion of that
particular document helped to bolster the defendants'
argument that Relan had not told his medical providers for
his October 14, 2013 accident, that he had also undergone
treatment for a 2001 car accident. On September 6, 2017,
Standard filed a motion for new trial that adopted
Relan's arguments. Both motions for a new trial were
denied following a hearing on September 27, 2017. Relan
thereafter sought a devolutive appeal on November 14, 2017,
which was granted on that same date. On November 21, 2017,
Standard filed its own motion for a devolutive appeal, which
was granted that day.
their first assignment of error, appellants argue that the
trial court abused its discretion and denied Relan a fair
trial when it allowed the defendants-appellees to add the
retained medical expert witness, Christopher Cenac, Sr., M.D.
after the discovery deadline date. In a related issue,
appellants assert that Relan was prevented from conducting
the deposition of Dr. Cenac before trial.
instant case, the record indicates that several pre-trial
scheduling orders were issued by the trial court which
pertained to different jury trial settings. The first
scheduling order, for a proposed April 13, 2015 jury trial
date, provided that exhibit and witness lists "shall be
exchanged within 90 days prior to trial" by January 19,
2015. All discovery was ordered to be completed "60 days
prior to trial" by February 12, 2015. The second
scheduling order, for a proposed December 5, 2016 jury trial
date, also had the 90-day and 60-day deadlines; however, no
specific dates were provided in that order. A third
scheduling order, which anticipated a May 8, 2017 jury trial,
allotted only 30 days, until March 17, 2017, to complete
exhibit and witness lists, and 60 days prior to trial to
complete discovery, March 9, 2017.
5, 2017, Relan filed an unopposed motion to continue and
reset jury trial on the merits, requesting an August 14, 2017
trial date. The record does not indicate that a new
scheduling order was issued in relation to the August trial
setting deadlines for the completion of witness lists and
discovery. On June 22, 2017, DHH filed, by fax, its fourth
supplemental and amended witness exhibit list, which included
Dr. Christopher E. Cenac, Sr. as a medical expert
witness. No formal objection to the timeliness of
DHH's supplemental filing by appellants appears in the
record, nor does an objection to Dr. Cenac's inclusion on
the witness list appear to have been made. Further, on the
eve of trial, appellants had no pending motions in limine
pertaining to the exclusion of Dr. Cenac's testimony.
importantly, appellants did not object to Dr. Cenac's
testimony at the time of trial.
may not be predicated on a ruling that admits evidence unless
a contemporaneous objection was made, and the ruling affected
a substantial right of the party. La. C.E. art. 103(A). For
an issue to be preserved for review, a party must make a
timely objection and state the specific ground for the
objection. The reasons for the objection must be brought to
the attention of the trial court to allow it the opportunity
to make the proper ruling and prevent or cure any error.
Willis v. Noble Drilling (US), Inc., 11-598 (La.App.
5 Cir. 11/13/12), 105 So.3d 828, 835-36. "It is well
established that when a party fails to contemporaneously
object to the introduction of objectionable evidence, that
party waives the right to complain of the issue on
appeal." Aisola v. Beacon Hosp. Mgmt., Inc.,
13-1101 (La.App. 4 Cir. 4/2/14), 140 So.3d 71, 78. On appeal,
an appellant is limited to the grounds for objection that he
articulated in the trial court and a new basis for the
objection may not be raised for the first time on appeal.
State v. Grimes, 092 (La.App. 5 Cir. 5/26/09), 16
So.3d 418, 424, writ denied, 09-1517 (La.3/12/10),
28 So.3d 1023.
in this case, where the record before us does not reflect
that appellants objected to Dr. Cenac's testimony either
before trial or during trial, we find that this issue is not
properly before us on appeal.
related argument, appellants assert that the trial
court's alleged error of allowing DHH to untimely add Dr.
Cenac to its witness list was compounded when the trial court
would not allow them to depose Dr. Cenac prior to
trial. Our careful review of the record in this
matter does not show that Relan noticed the deposition of Dr.
Cenac, or otherwise sought leave from the trial court to
depose prior him prior to trial.
of Appeal is a court of record, which must limit its review
to evidence in the record before it and render its judgment
upon the record on appeal. LSA-C.C.P. art. 2164; Hover v.
Farber, 05-613 (La.App. 5 Cir. 1/31/06), 922 So.2d 637,
638. The record on appeal is that which is sent by the trial
court to the appellate court and includes pleadings, court
minutes, transcripts, jury instructions, judgments, and other
rulings, unless otherwise designated. LSA-C.C.P. art. 2128;
Reed v. Peoples State Bank of Many, 36, 531 (La.App.
2 Cir. 3/5/03), 839 So.2d 955, 958. Memoranda and exhibits
which were not filed into evidence in the trial court are not
part of the record on appeal. Id.
well-settled that the appellate briefs of the parties are not
part of the record on appeal, and this Court has no authority
to consider facts referred to in appellate briefs if they are
not in the record that is lodged in the appellate court.
Austin v. State Farm Ins. Co, 06-808 (La.App. 5 Cir.
3/13/07), 956 So.2d 13, 15, writ denied, 07-0761
(La.6/1/07), 957 So.2d 178. If a party's brief asserts
facts which are not in the record and refers to exhibits
which have not been filed into evidence in the trial court,
an appellate court may not consider those memoranda or
exhibits, since they are outside the record. LSA-C.C.P. art.
2164; Reed, 36, 531 at 5, 839 So.2d at 958; Ray
Brandt Nissan, Inc. v. Gurvich, 98-634 (La.App. 5 Cir.
1/26/99), 726 So.2d 474, 476.
appellants' briefs refer to facts which are not in the
record before us. Accordingly, appellants' assignment of
error pertaining to ...