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John W. Tew, II v. United Services Automobile Association, Timothy Andries and GEICO General Insurance Company
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
JOHN W. TEW, II NO. 2021 CW 1058 VERSUS PAGE 1 of 2
UNITED SERVICES AUTOMOBILE ASSOCIATION, TIMOTHY ANDRIES AND GEICO GENERAL INSURANCE COMPANY
CONSOLIDATED WITH
JOHN W. TEW, II
VERSUS
GOAUTO INSURANCE COMPANY AND SEPTEMBER 23, 2021 EARL V. HUTTON
In Re: United Services Automobile Association, applying for
supervisory writs, 19th Judicial District Court,
Parish of East Baton Rouge, No. 656812 c/ w 657425. BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
WRIT GRANTED IN PART; WRIT DENIED IN PART. We find that the trial court abused its discretion by granting a motion in limine to exclude evidence of plaintiff' s other injuries - including torn biceps, mallet finger, and carpal tunnel syndrome. We find the probative value of such evidence as to the claims for general damages and loss of earning capacity outweighs the danger of unfair prejudice. While we may agree
with Judge Guidry' s analysis, we decline to exercise our
supervisory jurisdiction as to all other issues as the criteria set forth in Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878 ( La. 1981) ( per curiara) are
not met. However, the granting of a" partial, partial" summary judgment on the issue of medical causation of the plaintiff' s
herniation at the C5- 6 level may lead to jury confusion and perhaps unintended consequences since the issue of medical causation of the plaintiff' s other injuries, future medical
treatment, and general and special damages may necessarily have to be decided by the jury in a bifurcated manner.
GH WRC
Guidry, J., dissents in part and concurs in part. I would
reverse the trial court' s ruling granting partial summary judgment on medical causation of plaintiff' s C5- 6 herniation. Most, if not all, of the physicians testified that their causation opinions were based on the subjective complaints and
history provided by plaintiff. The physicians' causation
opinions are only as reliable as the patient history on which it was based. The medical opinions, therefore, are tied to the
credibility of plaintiff. Causation is an issue of fact that is generally decided at the trial on the merits. Estate of Adams v. Home Health Care of La., 2000- 2494 ( La. 12/ 15/ 00), 775 So. 2d 1064. Because the medical opinions rely on the truthfulness of
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
No. 2021 CW 1058 PAGE 2 of 2
plaintiff' s subjective complaints and history, a causation determination necessarily invokes a credibility assessment, which is not appropriate on summary judgment. A trial court
cannot make cred-ibility decisions on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5747, 2003- 1533 ( La. 2/ 20/ 04), 866 So. 2d 228, 234; Monterrey Center, LLC v. Education Partners, Inc., 2008- 0734 ( La. App. 1st Cir. 12/ 23/ 08), 5 So. 3d 225. For the foregoing reasons, I dissent. In all other respects, I concu-r with the majority.
COURT OF APPEAL, FIRST CIRCUIT
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