Full Opinion (html_with_citations)

KEYON YOUNGBLOOD AND                    *       NO. 2022-CA-0202
JOSHUA YOUNGBLOOD
                                        *
VERSUS                                          COURT OF APPEAL
                                        *
DEONE HAMPTON,                                  FOURTH CIRCUIT
REINHART                                *
TRANSPORTATION, LLC,                            STATE OF LOUISIANA
AND ACE AMERICAN                   *******
INSURANCE COMPANY



                              APPEAL FROM
               CIVIL DISTRICT COURT, ORLEANS PARISH
                     NO. 2018-03416, DIVISION “F-14”
                        Honorable Jennifer M. Medley
                                 ******
                           Judge Rosemary Ledet
                                 ******
(Court composed of Judge Rosemary Ledet, Judge Paula A. Brown, Judge Pro
Tempore James F. McKay, III)


Vanessa Motta
MOTTA LAW LLC
3632 Canal Street
New Orleans, LA 70119

     COUNSEL FOR PLAINTIFF/APPELLANT


D. Russell Holwadel
Phillip Joseph Rew
ADAMS HOEFER HOLWADEL & EDLRIDGE, L.L.C.
400 Poydras Street
Suite 2450
New Orleans, LA 70130

     COUNSEL FOR DEFENDANT/APPELLEE

                                                         AFFIRMED
                                                     DECEMBER 9, 2022
RML
PAB
JFM


       This is a personal injury case. Plaintiffs, Keyon Youngblood (“Keyon”) and

Joshua Youngblood (“Joshua”), appeal the trial court’s judgments dismissing their

claims with prejudice, following the return of jury verdicts in favor of Defendant,

Deone Hampton. For the reasons that follow, we affirm the trial court’s

judgments.

                FACTUAL AND PROCEDURAL BACKGROUND

       Keyon Youngblood was in an automobile accident with Mr. Hampton on the

edge of the French Quarter while Mr. Hampton was in the course and scope of his

employment as a truck driver for Reinhart Food Services, LLC (“Reinhart”).

Keyon and his brother, Joshua (collectively, “Plaintiffs”), sued Mr. Hampton,

Reinhart Transportation Company, LLC1, and Reinhart’s insurer, Ace American

Insurance Company (collectively, “Defendants”) for damages. Plaintiffs claim

they were both in Keyon’s vehicle at the time of the accident and sustained neck




1 Reinhardt Transportation Company, LLC, is a distinct entity from Reinhardt Food Services,

LLC, Mr. Hampton’s employer. Plaintiffs did not add Reinhardt Food Services, LLC, as a
defendant and only Mr. Hampton appeared on the verdict form at trial.


                                              1
and back injuries. Defendants answered the suit, denying liability and denying that

Joshua was in the vehicle at the time of the accident.

       The case proceeded to a four-day jury trial. Witness testimony and

documentary evidence established that the accident occurred while the vehicles

were travelling westbound on Rampart Street just past Canal Street at

approximately 6:39 a.m. Mr. Hampton was in a large box truck attempting to turn

right onto Iberville Street while Keyon passed him on the right in his pickup truck.

The two vehicles made contact, causing Mr. Youngblood’s tire to blow out and

other alleged, unspecified damage to his pickup truck. After the accident, Keyon

and Mr. Hampton each called 911 and requested an ambulance for Keyon. The

remaining facts of the accident were disputed,2 as was the necessity of Plaintiffs’

medical treatment and Joshua’s presence in Keyon’s vehicle at the time of the

accident.

       Plaintiffs testified that, before the accident, Joshua called Keyon to ask

Keyon to pick him up at the end of his shift as a street sweeper with Empire

Services. According to Plaintiffs, the accident occurred after Keyon picked up

Joshua while Joshua was in Keyon’s truck. But, Mr. Hampton testified that Keyon

was alone in his truck during the accident; and, Joshua arrived at the scene later in

a brown Buick with a female companion.

       In support of their version of events, Defendants introduced bodycam

footage from a responding police officer that showed Joshua attempting to replace


2 The jury found both Keyon Youngblood and Mr. Hampton were equally at fault in causing the

accident. Plaintiffs have not appealed this finding.


                                                 2
Keyon’s flat tire more than an hour after the accident. Nearby was a brown Buick,

and an unidentified woman stood near Joshua watching him attempt to change the

truck’s tire. Defendants also called Ricardo Leal, a T-Mobile employee, tendered

and accepted by the trial court as an expert in historical cell site records, who

reviewed T-Mobile records for calls between Keyon and Joshua and testified that

at 6:41 a.m., 6:45 a.m., 6:53 a.m., and 7:03 a.m. Joshua’s cellphone received

incoming calls from Keyon’s cellphone. From T-Mobile’s data, Mr. Leal

determined that the initial incoming calls to Joshua were routed through a

cellphone antenna located on Behrman Highway in Terrytown, Louisiana, several

miles from the accident scene, suggesting that his cellphone was somewhere near

the Behrman Highway cellphone antenna. Lastly, in defense of Joshua’s claims,

Defendants called a representative of Empire Services—the company Joshua

claimed to have worked for on the morning of the accident—who testified that

Joshua had been terminated three months before the accident. Defendants

introduced personnel documents from Empire Services corroborating Joshua’s

termination date.

      Plaintiffs received treatment for their alleged injuries from several medical

providers, including a chiropractor, a neurosurgeon, and an interventional pain

medicine doctor, each of whom testified at trial. Each medical provider opined

that Plaintiffs’ injuries were caused by the accident, necessitating the provided

treatment. But, each medical provider admitted on cross-examination that they

were unaware of Plaintiffs’ history of motor vehicle accidents, their earlier claims



                                           3
of injuries similar to those claimed in the instant action, and their earlier medical

treatment for similar injuries. Defendants also introduced documents obtained

from local scrapyards that indicated Keyon unloaded and sold thousands of pounds

of scrap metal in the weeks after the accident and video footage showing Keyon

unloading heavy scrap metal and old appliances from his pickup truck.3

        At the conclusion of the trial, the jury returned a unanimous verdict finding

that Joshua was not in Keyon’s truck during the accident. The jury further found

that Mr. Hampton and Keyon were equally at fault for the accident but found that

the accident was not the proximate cause of Keyon’s alleged injuries.

                                        DISCUSSION

        Keyon and Joshua Youngblood assign twelve errors to the trial court.4 We

address each below, but address assignment of error number ten out of sequence.

   I.      Ex Parte Communication between the Judicial Law Clerk and the Jury

        Plaintiffs contend that the trial court erred in permitting a judicial law clerk

to engage in ex parte communication with the jury during its deliberations. The

jury was provided with separate verdict forms for Keyon and Joshua containing

jury interrogatories agreed upon by both parties. After retiring for deliberations,

the jury returned the verdict forms for both Keyon and Joshua. The trial judge

found an unspecified error in the jury’s verdict form for Keyon and instructed the

jury to again retire to the jury room to complete the jury interrogatories for Keyon.

3 Keyon Youngblood testified that before the accident he made money by selling scrap metal and

other old and broken appliances and metal objects to local scrapyards.
4 The Youngblood’s twelfth assignment of error seeks review of the trial court’s judgment taxing

them with all costs. Because this judgment is not in the appellate record, we do not address it.


                                                 4
The trial judge instructed her law clerk to lead the jury into the jury room. Later,

the law clerk returned to the courtroom and informed the trial judge and counsel

for both parties that the jury had questions about completing the Keyon’s verdict

form. Specifically, the law clerk stated the following:

      Law Clerk:

             So the first question by the jurors was they wanted to know if
      they still had to fill in Question No. 5 regarding the percentages to
      Deone Hampton and the percentages of Keyon Youngblood because
      of their responses to some of the other questions.

      ….

            And then they also had questions regarding what the allocation
      of the percentages meant for the case. Like what it meant for the
      defendant and what it meant for the plaintiff in allocating percentages.
      And then they wanted to know if the 9 out of 12 people were still
      needed to come up with the percentages on Question No. 5.

      Mr. Holwadel [Defense Counsel]:

               Yeah, I want everything.

      The Court:

               Yes --

      Law Clerk:

               Yes. I told them every --

      Mr. Holwadel:

               Okay. Thank you.

      Law Clerk:

               9 out of 12 people had to agree for all the questions that were
      asked.

      The Court:

               Yeah.


                                           5
      Mr. Sutton [Plaintiffs’ Counsel]:

             So we might be here a while then.
      …

      Law Clerk:

            When I told them just 9 out of 12 people had to agree on the
      percentages and stuff, that seemed to ease them a little bit. Because
      for some reason, they thought that it – like all of them had to be in
      agreement for the percentages of fault, and then they just kind of
      misunderstood what everything meant.

      When the jury returned to the courtroom with a completed verdict form for

Keyon, the law clerk read both verdict forms aloud. The jury found unanimously

that Joshua was not a passenger in Keyon’s pickup truck at the time of the

accident, awarding him nothing. As to Keyon, the jury found that Mr. Hampton

was negligent in causing the accident but in the next interrogatory found that Mr.

Hampton’s negligence was not a proximate cause of any damages claimed by

Keyon. Because the jury answered this interrogatory in the negative—finding

Keyon failed to prove an essential element of his claim—the verdict form

instructed the jury to sign the form and return it to the courtroom. However, the

jury continued to answer some, but not all, of the remaining jury interrogatories,

finding that Keyon was also negligent in causing the accident, assigning fifty

percent fault to both drivers, and awarding Keyon no damages.

      Plaintiffs argue the law clerk’s admission—that she told the jury they had to

agree to each jury interrogatory answer by a nine-person majority —constitutes

reversible error. Further, Plaintiffs point to a statement from the law clerk during

her recitation of Keyon’s verdict form as evidence that the law clerk gave

additional ex parte instructions to the jury that were not disclosed to the trial court

and the parties. Specifically, the jury did not answer jury interrogatory number 4,

                                           6
which asked whether the jury found that Keyon’s negligence was a proximate

cause of any damages claimed by him. After reading interrogatory number 4, the

law clerk stated, “the answers are left blank as instructed.” (emphasis added).

Plaintiffs claim that, because the jury interrogatory form did not instruct the jury to

leave interrogatory number 4 blank, only the law clerk could have instructed the

jury to leave it blank. Moreover, Plaintiffs speculate that the law clerk could have

given the jury any number of additional ex parte instructions while outside the

courtroom.

         Plaintiffs’ arguments regarding the law clerk’s alleged ex parte

communications are raised for the first time on appeal. Plaintiffs failed to object at

trial, failed to question the trial court or law clerk regarding the ex parte

communications, and failed to raise the issue in their motion for new trial.

Defendants argue that Plaintiffs have waived their right to appeal this issue. We

agree.

         “The right to attack on appeal an allegedly improper instruction given after

that case has been submitted to the jury must be preserved by an objection made at

the time the supplemental instruction is given.” West v. Nat’l R.R. Passenger

Corp., 03-1707, pp. 4-5 (La. App. 4 Cir. 6/23/04),
879 So.2d 327, 331
 (citing

Berrera v. Hyundai Motor America Corp., 92-2108, (La. App. 4 Cir. 1993),
620 So.2d 890
, 893). In West, this court stated:

         The policy considerations underlying these rules are obvious. As the
         court stated in Renz,5 ‘Counsel may not permit or acquiesce in an
         easily corrected procedural error and then, after an adverse verdict,
         urge such error for the first time as a ground for setting aside a jury
         verdict reached by the expensive and cumbersome method of a jury
         trial.’

5 Renz v. Texas & Pacific Railway Co.,
138 So.2d 114
 (La. App. 3d Cir. 1962).




                                              7
Id.

       Despite their failure to object to the law clerk’s ex parte communication,

Plaintiffs urge this court to follow Lawson v. Straus, 98-2096 (La. App. 4 Cir.

12/8/99),
750 So.2d 234
, and Delo Reyes v. Liberty Mut. Fire Ins. Co., 08-0769

(La. App. 4 Cir. 2/18/09),
9 So.3d 890
, and reverse the trial court’s judgment

regardless of their acquiescence. In both Lawson and Delo Reyes, this court found

that a trial judge’s conduct so impaired the administration of impartial justice that

reversal was necessary in the interest of justice, despite the absence of a

contemporaneous objection. 98-2096, pp. 6-7
750 So.2d at 239
; 08-0729, p. 5,
9 So.3d at 893
. The Lawson trial judge repeatedly entered the jury room outside of

the presence of plaintiff’s counsel, answered multiple questions from jurors, and

indicated to the jury that he would declare a mistrial if they did not reach a verdict.

98-2096, p. 3,
750 So.2d at 237
.6 In Delo Reyes, the trial judge entered the jury

room on multiple occasions during deliberations without notice to the parties and

explained legal issues to the jury, including negligence standards and burdens of

proof. 08-0729, p. 2,
9 So.3d at 891
.

       Unlike the ex parte communications at issue in Lawson and Delo Reyes, we

do not find that the law clerk’s statement to the jury in this case warrants

consideration given that no objection was lodged in the trial court. Contrary to

Plaintiffs’ claims, the record reflects only one ex parte statement to the jury—

confirming the written jury instruction, agreed upon by both parties, that the jury

must reach a nine-person majority for each interrogatory on the verdict form.


6 Moreover, the Lawson court found that the trial court’s failure to notify the plaintiffs’ counsel

of its plan to speak with the jury prevented the plaintiffs from objecting contemporaneously. Id.
98-2096, p. 7,
750 So.2d at 239
.


                                                  8
While ex parte communication concerning any point of law between judicial staff

and the jury should be avoided, we do not find that the law clerk’s statement

reiterating a written jury instruction, impaired the administration of impartial

justice.

         Moreover, we find Plaintiffs’ speculation that the law clerk gave the jury

additional ex parte instructions—based on the law clerk’s statement that Keyon’s

jury interrogatory number four was left blank “as instructed”—baseless. The

verdict form for Keyon explicitly instructed the jurors that, if they found Mr.

Hampton’s negligence was not a proximate cause of any damages claimed by

Keyon, they were to sign the form and return it to the courtroom, leaving the

remaining interrogatories blank. Having found no proximate cause between Mr.

Hampton’s negligence and Keyon’s claimed damages, the law clerk’s statement

that the jury left interrogatory number four blank, as instructed, was accurate.

         Accordingly, Plaintiffs’ first assignment of error is unpersuasive.

   II.      Evidentiary Rulings

         Plaintiffs next assign error to various evidentiary rulings made before and

during trial. We address the standard of review and legal principles applicable to

all of these issues before addressing each assignment of evidentiary error.

         “A trial court is afforded great discretion concerning the admission of

evidence at trial, and its decision to admit or exclude evidence may not be reversed

on appeal in the absence of an abuse of that discretion.” Alfred Conhagen, Inc. of

Louisiana v. Ruhrpumpen, Inc., 21-0396, p. 5 (La. App. 4 Cir. 4/13/22),
338 So.3d 55
, 62 (internal citation omitted). The abuse of discretion standard is highly

deferential to the trial court unless the court exercised its discretion based upon an

erroneous view of the law or a clearly erroneous view of the facts. Tran v. Collins,

                                            9
20-0246, p. 5 (La. App. 4 Cir. 8/20/21),
326 So.3d 1274
, 1279 (citing Show & Tell

of New Orleans, L.L.C. v. Fellowship Missionary Baptist Church, 14-0843, p. 2

(La. App. 4 Cir. 12/17/14),
156 So.3d 1234, 1237
). If an appellate court finds the

trial court erred in its decision to admit or exclude evidence, the appellate court

must evaluate whether the errors, cumulatively, are prejudicial to the extent they

constitute reversible error. Lovecchio v. Romain, 19-0779, p. 11(La. App. 4 Cir.

3/25/20),
2020 WL 1465943
, *5.

        In their second assignment of error, Plaintiffs argue that the trial court erred

in excluding documents from the Louisiana Department of Public Safety which

they contend were to impeach Mr. Hampton’s testimony concerning the status of

his commercial driver’s license at the time of the accident. Defendants objected to

introduction of this evidence on the basis that Plaintiffs had not disclosed it before

attempting to introduce it at trial. The trial court agreed, reasoning that the pretrial

order required that all exhibits, including impeachment evidence, be exchanged

before trial.7 Moreover, before trial, the trial court granted Plaintiffs’ own motion

in limine requesting the exclusion of all evidence—including impeachment

exhibits—not disclosed before trial.8 Defendants argue that it would be patently

unjust to impose this rule against Defendants and not Plaintiffs. We agree.

        Plaintiffs cite Tew v. USAA, 21-1166 (La. App. 1 Cir. 9/29/21),
2021 WL 4458840
 (unpub.), in support of their argument. We do not find Tew persuasive.

The finding in Tew, that impeachment evidence is exempt from pretrial disclosure


7 The trial court also expressed doubt that the status of Mr. Hampton’s commercial driver’s

license was relevant to his liability for the accident.
8 In their motion, Plaintiffs argued, “Defendants should be prohibited from any reference, verbal

or documentary, to any witnesses, testimony or documents when the identity or reports of such
witnesses or documents were not specifically (not generically) disclosed in the discovery
process.”


                                                  10
was based on the Nineteenth Judicial District Court’s Rules of Court, which

exempt impeachment evidence from disclosure prior to trial.
Id.
 No such rule

exists in Orleans Civil District Court. Moreover, Plaintiffs obtained the documents

at issue before trial and, in light of Mr. Hampton’s deposition testimony, knew the

documents were likely to be introduced at trial. Given their advanced knowledge

of these documents and their own motion in limine, Plaintiffs’ failure to disclose

the documents in advance of trial violated both the spirit and the letter of the

pretrial order. See Gallow v. Jack Eckerd Corp.,
630 So.2d 970, 972
 (La. App. 3d

Cir. 1994) (affirming exclusion of undisclosed impeachment evidence in violation

of pretrial order). Accordingly, we find no abuse of discretion in the trial court’s

exclusion of the Louisiana Department of Public Safety records from evidence at

trial.

         In their third assignment of error, Plaintiffs argue the trial court erred in

preventing them from impeaching Mr. Hampton with the audio recording of his

911 call. Plaintiffs allege this recording would impeach Mr. Hampton’s trial

testimony that he looked into Keyon’s truck—where Joshua claimed to be sitting—

and saw no one there. But, the audio recording was not introduced into evidence

or proffered in the trial court, leaving this court with nothing to review. Melerine

v. O'Connor, 13-1073, p. 8 (La. App. 4 Cir. 2/26/14),
135 So.3d 1198, 1205

(observing, “[a] court of appeal is a court of record, which must limit its review to

evidence in the record before it. An appellate court cannot review evidence that is

not in the record on appeal and cannot receive new evidence.” (citing La. C.C.P.

art. 2164; Board of Directors of Industrial Development Bd. of City of New

Orleans v. All Taxpayers, Property Owners, Citizens of New Orleans, 03-0826, p.

4 (La. App. 4 Cir. 5/29/03),
848 So.2d 740, 744
)).

                                             11
      Plaintiffs also contend that the trial court erred in preventing them from

impeaching Mr. Hampton with his own answer to Plaintiffs’ petition for damages,

in which he asserted in an affirmative defense that the negligence of Keyon and/or

Joshua contributed to the alleged accident and injuries. But, the record contains no

ruling from the trial court on this matter. Finding nothing in the record to review

in regard to this assignment of error, we find no error by the trial court.

      In their fourth assignment of error, Plaintiffs argue the trial court erred in

permitting Defendants to present evidence that Joshua was not in Keyon’s vehicle

at the time of the accident. Likewise, Plaintiffs claim the trial court erred in

permitting a jury interrogatory questioning whether the jury found that Joshua was

in the vehicle during the accident. Plaintiffs contend that Defendants failed to

affirmatively plead fraud in their answer; thus, they claim the trial court erred in

permitting the evidence of Joshua’s presence elsewhere and the jury interrogatory

concerning Joshua’s presence in Keyon’s vehicle at the time of the accident.

      The record demonstrates that Defendants denied Joshua Youngblood’s

involvement in the accident from the outset—including in their initial answer—

through the end of trial. This defense sought to disprove essential elements of

Joshua’s claim and neither raised a new matter nor raised a defense which assumed

his claim to be true. Thus, it was not an affirmative defense; rather, it was a

negative defense that need not be affirmatively pleaded. See Keller v. Amedeo,
512 So.2d 385, 388
 (La. 1987). Accordingly, we find Plaintiffs’ fourth assignment

of error unpersuasive.

      In their fifth assignment of error, Plaintiffs argue that the trial court erred in

denying their motion for spoliation of evidence regarding allegedly missing

dashcam footage from the truck driven by Mr. Hampton and an allegedly missing

                                           12
report of corrective training, automatically generated by the dashcam software

(“coaching sessions”). Plaintiffs contend that the original dashcam footage from

the truck and the coaching session was intentionally destroyed or concealed by

Defendants because the video and report recorded the actual time of the accident,

which they claim on appeal was much later than the 6:39 a.m. accident time

claimed by Defendants, based on the driver’s log in Mr. Hampton’s truck.

      According to Plaintiffs, Mr. Hampton and Reinhardt’s representative Ken

Cosby lied about the time of the accident to make it appear that the four calls from

Keyon to Joshua at 6:41 a.m., 6:45 a.m., 6:53 a.m., and 7:03 a.m. were made

within minutes of the accident to fit within the Defendants’ theory that Joshua was

not involved in the accident and arrived later after Keyon notified him of the

accident. Plaintiffs, however, submitted no evidence to demonstrate that

Defendants intentionally destroyed the allegedly missing footage or coaching

session. See Roussell v. Circle K Store, Inc., 21-0582, p. 4 (La. App. 1 Cir.

12/22/21),
340 So.3d 52
, 56 (observing that spoliation requires “an intentional

destruction of evidence for the purpose of depriving the opposing parties of its use

in pending or anticipated litigation.”).

      Moreover, in sworn trial testimony, Joshua conceded that the accident

happened at or very near the time claimed by Defendants. On redirect

examination, Joshua claimed that he did in fact receive the four calls from Keyon

in the twenty-five minutes after the accident, but he claimed both he and Keyon

were at the accident scene when the calls were received. Keyon, Joshua explained,

was outside of the pickup truck calling Joshua, who was inside the pickup truck, to

tell him to remain in the truck. He alleged these calls were made despite Plaintiffs

being within speaking distance of each other. Further, Plaintiffs’ own proffered

                                           13
exhibits one and two—written reports of 911 calls by Keyon and Mr. Hampton—

indicate that both men called 911 to report the accident at 6:50, within ten minutes

of the Defendants’ reported accident time. Accordingly, we find no error in the

trial court’s ruling denying Plaintiffs’ motion for spoliation.

      In their sixth assignment of error, Plaintiffs argue the trial court erred in

permitting Ricardo Leal to offer expert testimony on the location of Keyon’s and

Joshua’s cellphones when calls were made between them.

      “[T]he trial court is afforded wide discretion in determining whether expert

testimony should be admitted and who should or should not be qualified as an

expert. A trial court's decision to qualify an expert will not be overturned absent

an abuse of discretion.” Boudreaux v. Bollinger Shipyard, 15-1345, p. 15 (La.

App. 4 Cir. 6/22/16),
197 So.3d 761
, 770–71 (internal citations omitted). In

opposition to Plaintiffs’ motion to exclude or limit the testimony of Mr. Leal,

Defendants attached Mr. Leal’s resume and an affidavit, in which he attested to

testifying in more than 350 trials. In 20-25% of those trials, he interpreted cell

phone records to determine the location and movement of cellphones relative to

towers used to make or receive calls. He has been accepted as an expert in courts in

California, Michigan, and Maryland. See, e.g., People v. Martin, B239366,
2014 WL 3736212
, at *11 (Cal. Ct. App. July 30, 2014) (unpub.). Moreover, at trial, he

testified that he had more than eighteen years of experience analyzing historical

cell site records. Considering Mr. Leal’s experience and expert testimony history,

we cannot say the trial court abused its discretion in permitting him to testify on

the location of Plaintiffs’ cellphones.

      In their seventh assignment of error, Plaintiffs argue the trial court erred in

permitting Reinhart’s corporate representative, Ken Cosby, to testify because Mr.

                                          14
Cosby did not appear on either parties’ witness list. “A trial judge has great

discretion in conducting a trial, which discretion includes the admissibility of

witness testimony.” Tassin v. State Farm Mut. Auto. Ins. Co., 20-00652, p. 2 (La.

10/14/20),
302 So.3d 1098
, 1099. In this instance, the trial court reasoned, despite

Defendants’ failure to list Mr. Cosby on their witness list, Plaintiffs were aware of

Mr. Cosby for more than two years before trial and had taken Mr. Cosby’s

deposition before trial. Finding no prejudice to Plaintiffs, the trial court admitted

Mr. Cosby’s testimony. Considering the absence of any prejudice, we find no

error in permitting Ken Cosby to testify at trial.

      In their eighth assignment of error, Plaintiffs argue the trial court erred in

allowing Defendants to introduce surveillance videos of Keyon unloading scrap

from his truck. The videos, obtained from surveillance footage at New Orleans

scrapyards, depict Keyon pushing and lifting heavy objects from his truck bed,

including heavy appliances, such as a stove, a washer and dryer, a water heater,

and a refrigerator. Plaintiffs contend that the videos, taken between December 12,

2018 and March 25, 2019, were irrelevant and should have been excluded at trial,

because they were recorded after Keyon underwent surgery.

      “Surveillance videotape ostensibly picturing a personal injury plaintiff

engaged in physical activity is highly relevant to the plaintiff's claim for damages

as the result of physical injury. Such surveillance videotape could be used as

substantive, corroborative, or impeachment evidence at trial.” Wolford v. JoEllen

Smith Psychiatric Hosp., 96-2460, p. 2 (La. 5/20/97),
693 So.2d 1164, 1166
.

Keyon claimed severe and ongoing pain at trial. He likewise claimed his ability to

work as a scrapper was impaired, because he could not lift heavy objects or unload




                                          15
anything from his truck by himself and required a paid helper.9 Keyon also

claimed the accident totaled his truck, requiring him to get a new truck. The video

evidence at issue undermined Keyon’s testimony on all three points, depicting him

lifting heavy objects, despite his claims of severe pain; driving the same truck he

claimed was totaled during the accident; and selling scrap without a paid helper.

Moreover, Defendants disclosed the video surveillance sufficiently in advance of

trial to prevent any undue prejudice to Plaintiffs. Accordingly, we find no error in

the trial court’s judgment permitting the surveillance videos to be shown at trial.

       In their ninth assignment of error, Plaintiffs argue the trial court erred in

preventing them from introducing evidence that Reinhardt failed to perform a

preventability assessment10 after the accident and failed to submit Mr. Hampton to

drug and alcohol testing within two hours of the accident. Plaintiffs do not explain

how Reinhardt’s failure to perform a preventability assessment after the accident is

relevant. Plaintiffs did not assert any independent negligent claims against

Reinhardt, and Reinhardt’s failure to perform a preventability assessment after the

accident has no bearing on Mr. Hampton’s credibility or his fault in causing the

accident. Moreover, given the jury’s finding that Mr. Hampton was at fault,

Plaintiffs have failed to demonstrate any prejudice by the trial court’s exclusion of

Reinhardt’s failure to perform a preventability assessment. Plaintiffs likewise fail

to explain the relevance of Reinhardt’s late drug and alcohol testing of Mr.

Hampton. The record is devoid of any evidence or allegation suggesting Mr.



9 Keyon never identified his helper by anything more than a first name—Jake—despite requests

for his full name, his location, or contact information.
10 A preventability assessment is a determination of corrective action that could be taken to

prevent the reoccurrence of an accident.



                                                 16
Hampton was impaired at the time of the accident. Accordingly, we find this

assignment of error unpersuasive.

         In their eleventh assignment of error, Plaintiffs contend the trial court erred

in denying their motion to compel service of a trial subpoena on Rico Papillion, the

passenger in Mr. Hampton’s truck, through defense counsel. Mr. Papillion is not a

party to this case and resides beyond the trial court’s subpoena power. Mr.

Papillion retained Defendants’ attorneys to obtain from Plaintiffs an alleged

recorded statement of him. Pursuant to La. C.C.P. art. 1424 (B)11, defense counsel

appeared on behalf of Mr. Papillion and moved the trial court to order Plaintiffs to

produce the statement to Mr. Papillion. The parties dispute whether defense

counsel’s representation of Mr. Papillion to obtain his recorded statement

constituted a general appearance subjecting him to the jurisdiction of the trial

court.

         We, however, need not decide this issue, as Plaintiffs have failed to make

any showing of prejudice from the trial court’s denial of their motion to compel.

Plaintiffs have not stated how Mr. Papillion’s testimony could have altered the

outcome of the trial. To the contrary, Plaintiffs’ counsel represented in earlier

pleadings that she “felt satisfied that Mr. Papillion did not know anything sufficient

to add to the liability or facts in this case.” Further, when Defendants moved to

take Mr. Papillion’s deposition for the perpetuation of his testimony at trial,

Plaintiffs opposed the motion. Considering Plaintiffs’ failure to articulate any




11 La. C.C.P. art. 1424(B) provides, in pertinent part: “[u]pon request, a person not a party may

obtain without the required showing a statement concerning the action or its subject matter
previously made by that person.”



                                                17
prejudice caused by the trial court’s ruling, we find this assignment of error

unpersuasive.

   III.      Sufficiency of the Evidence

          In their tenth assignment of error, Plaintiffs claim there was insufficient

evidence to support the jury’s decision awarding them no damages. We disagree.

          Defendants introduced ample evidence to support the jury’s finding that

Joshua was not involved in the accident and that Keyon’s alleged injuries were not

proximately caused by the accident. The locations of his cellphone location

suggest Joshua was nowhere near the accident. Likewise, the sequence of Keyon

making four calls to Joshua within twenty-five minutes of the accident suggest that

Joshua was not involved in the accident. And Joshua’s explanation, after being

confronted with these records, that Keyon called Joshua four times to tell him to

remain in the truck when both were allegedly at the accident scene, was not

convincing.

          Plaintiffs’ shifting testimony regarding the facts of the accident, their prior

medical and accident history, and their medical treatment after the accident

likewise undermined their credibility and the reliability of their doctors’ testimony.

Keyon’s claims that he could not lift or move heavy objects after the accident, that

he could no longer sell scrap by himself after the accident, and that his truck was

totaled by the accident—proven demonstrably false by video evidence—provided

additional evidence undermining Plaintiffs’ credibility. In sum, the jury had ample

evidence to support its zero damage award. We find no merit in this assignment of

error.

                                         DECREE




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     For the foregoing reasons, the judgment of the trial court dismissing Keyon

and Joshua Youngblood’s claims against Deone Hampton, Reinhart

Transportation, LLC, and Ace American Insurance Company is affirmed.

                                                                    AFFIRMED




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