Leonardo Banks v. Reah Russell Meier

Filing 55

RULING denying 32 Motion for Partial Summary Judgment; granting in part and denying in part 34 Motion for Partial Summary Judgment. Banks claim for past lost wagesis dismissed with prejudice. Signed by Chief Judge Shelly D. Dick on 08/15/2018. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

LEONARDO BANKS AND MAYA BANKS,
INDIVIDUALLY AND ON BEHALF OF THEIR
MINOR CHILD, L.B.

CIVIL ACTION

VERSUS

17-12-SDD-RLB

REAH RUSSELL MEIER, ET AL.
RULING
This action arises out of a motor vehicle accident that occurred on July 24, 2015
on Interstate 10 in Baton Rouge, Louisiana. This matter is before the Court on the
Motion for Partial Summary Judgment on the Issue of Liability1 filed by Plaintiffs
Leonardo Banks (“Banks”) and Maya Banks (collectively “Plaintiffs”). Defendants, Reah
Russell Meier (“Meier”) and Nautilus Insurance Company (collectively “Defendants”)
have filed an Opposition2 to this motion. Because there are material facts in dispute,
and the resolution of this matter depends primarily on the credibility determinations of
conflicting witness testimony, the Motion shall be denied.
Also before the Court is the Motion for Partial Summary Judgment on Plaintiffs’
Claims for Future Medical Expenses, Wage Loss, and Loss of Earning Capacity3 filed
by Defendants. Plaintiffs filed an Opposition4 to this motion, to which Defendants filed a

1

Rec. Doc. No. 32.
Rec. Doc. No. 44. Defendants Berkley Specialty Underwriting Managers, LLC and Turo, Inc. have been
dismissed from this action with prejudice. Rec. Doc. No. 54.
3
Rec. Doc. No. 34.
4
Rec. Doc. No. 45. 
2

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Reply,5 and Plaintiffs filed a Sur-Reply.6 For the following reasons, the Motion shall be
granted in part and denied in part.
I.

SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”7 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”8 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”9 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”10 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”11
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”12 All reasonable factual

5

Rec. Doc. No. 49.
Rec. Doc. No. 52.
7
Fed. R. Civ. P. 56(a).
8
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
9
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp.2d 488, 494 (M.D. La. 2003)(quoting Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc)(quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25, 106 S.Ct. at 2552)).
10
Rivera v. Houston Independent School Dist., 349 F.3d 244, 247 (5th Cir. 2003)(quoting Morris v. Covan
World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
11
Willis v. Roche Biomedical Laboratories, Inc., 61 F.3d 313, 315 (5th Cir. 1995)(quoting Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
12
Pylant v. Hartford Life and Accident Insurance Company, 497 F.3d 536, 538 (5th Cir. 2007)(quoting
6

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inferences are drawn in favor of the nonmoving party.13 However, “[t]he Court has no
duty to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”14 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his
allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”15
II.

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AS TO LIABILITY
On July 24, 2015, Banks was driving eastbound in the left lane on Interstate 10 in

Baton Rouge, Louisiana.16 Traffic was heavy at this time, and both Banks and Meier
described it as “stop and go.”17 Meier and Sandi Ortiz (“Ortiz”), her passenger, were
following Banks in a Jeep.18 It is undisputed that Meier rear-ended Banks’ vehicle after
Banks had come to a complete stop. However, there is conflicting testimony regarding
whether Banks “slam[med]”19 on his brakes and stopped “suddenly,”20 or whether Banks
came to a complete and controlled stop. Thus, the issue of comparative fault is disputed
and improper on a summary judgment motion.
There are also disputed facts regarding whether the sudden emergency doctrine
applies in this case. Both Meier and Ortiz testified that an unknown Jeep illegally passed

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). 
13
Galindo v. Precision American Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
14
RSR Corp. v. International Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
15
Nat’l Ass’n of Gov’t Employees v. City Pub. Serv. Bd. of San Antonio, Tex., 40 F.3d 698, 713 (5th Cir.
1994)(quoting Anderson, 477 U.S. at 249).
16
Rec. Doc. No. 32-2 at 5 (Deposition of Leonardo Banks, p. 103).
17
Id.; Rec. Doc. No. 32-3 at 6-7 (Deposition of Reah Meier, pp. 52-53).
18
Rec. Doc. No. 44-1 at 8 (Deposition of Reah Meier, p. 32).
19
Id. at 14 (Deposition of Reah Meier, p. 54).
20
Id. at 24 (Deposition of Reah Meier, p. 96).

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Meier on the shoulder of the interstate and prevented her from avoiding the collision.
Generally, under Louisiana law, “[t]he driver of a motor vehicle shall not follow another
vehicle more closely than is reasonable and prudent, having due regard for the speed of
such vehicle and the traffic upon and the condition of the highway.”21 Additionally, “a
following motorist in a rear-end collision is presumed to have breached the standard of
conduct prescribed in La.Rev.Stat. Ann. 32:81, and hence is presumed negligent.”22
However, the sudden emergency doctrine provides:
[A]n exception to the general rule that a following motorist is presumed
negligent if he collides with the rear of a leading vehicle. This doctrine
provides that a following motorist will be adjudged free from fault if the
following motorist is suddenly confronted with an unanticipated hazard
created by a forward vehicle, which could not be reasonably avoided, unless
the emergency is brought about by his own negligence.23
While Plaintiffs argue the doctrine clearly does not apply in this case, the Court
finds that there exist disputed fact issues that must be resolved by the jury in determining
the applicability of this doctrine. Plaintiffs essentially ask the Court to credit the testimony
of Banks over the testimony of Meier, which is inappropriate on a summary judgment
motion. Indeed, credibility determinations are questions properly resolved by the trier-offact and not the Court. Moreover, summary judgment is also improper because the Court
is required by law to construe the facts in the light most favorable to Meier. Accordingly,
the Plaintiffs’ Motion for Summary Judgment as to Liability24 is DENIED.

21

La. R.S. 32:81A.
Mart v. Hill, 505 So.2d 1120, 1123 (La. 1987).
23
Walker v. American Nat. Property Cas. Co., No. 10-4292, 2012 WL 38345 at *3 (E.D. La. Jan. 9,
2012)(quoting Ly v. State Through the Dept. of Public Safety and Corrections, 633 So.2d 197, 201 (La.App.
1st Cir.1993)). 
24
Rec. Doc. No. 32.
22

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III.

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO FUTURE
MEDICAL EXPENSES, LOST EARNINGS, & LOSS OF EARNING CAPACITY
In this lawsuit, Banks seeks general damages for lower back and neck injuries he

allegedly sustained as a result of the accident. Banks also seeks special damages for
future medical expenses, loss of earnings, and loss of earning capacity.
Defendants move for summary judgment on these categories of damages.
Defendants contend that discovery is closed, and Banks has failed to produce any
evidence to establish a claim for future medical expenses. Further, because Banks has
continued to work since the accident, and has received promotions and raises,
Defendants contend Banks cannot carry his burden of establishing that he is entitled to
lost earnings or loss of earning capacity. Because Louisiana law requires a showing of
medical evidence that would restrict Banks from working, and it is undisputed that Banks
has continued to work in the position he held prior to the accident, Defendants contend
they are entitled to summary judgment on the earnings claims as well.
A. Future Medical Expenses
Banks cites testimony from both his own treating physician and portions of the
testimony of Defendants’ independent medical examiner which suggest the possible need
for future medical treatment. Both causation and the credibility of competing medical
testimony are issues to be resolved by the jury. Further, Banks is not precluded from
seeking future medical expenses because he has not submitted evidence of the exact
nature of the potential costs.
Louisiana courts hold that “[f]uture medical expenses are a legitimate form of
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recovery, even though they are not susceptible of precise mathematical calculations.”25
However, “[a]wards shall not be made for future medical expenses which may or may not
occur, in the absence of medical testimony that the expenses for necessary treatment are
indicated and setting out their probable cost.”26 Even so, “when the need for future
medical care has been demonstrated but cost is not susceptible of determination, the
court may make a reasonable award.”27
In Bly v. Prudential Property and Casualty Insurance Co., the Louisiana Fifth
Circuit Court of Appeal upheld a jury award of $15,000 in favor of one plaintiff despite the
fact that there was no medical evidence of the probable cost for future medical treatment
at trial, and no other evidence existed in the record as to the cost of a future surgery that
one doctor stated had only a 40% chance of being necessary.28 Nevertheless, the Bly
court reversed a jury award in favor of the other plaintiff because he failed to establish
any causal connection between the potential need for future medical treatment and the
accident.29

25

Bly v. Prudential Prop. & Cas. Ins. Co., 589 So. 2d 495, 497 (La. Ct. App. 1991); see also Moore v.
Kenilworth/Kailas Props., 2003-0738, pp. 13–14 (La. App. 4 Cir. 1/7/04); 865 So. 2d 884, 892, writ denied,
2004-0348 (La. 4/2/04), 869 So. 2d 882, and writ denied, 2004-0367 (La. 4/2/04), 869 So. 2d 883 (“Any
computation of a future medical damage award is by its nature a creature of speculation. Therefore, all a
finder of fact is able to do is use the testimony and evidence presented at trial to determine, to the extent
that it can be determined, what the costs for future medical treatment might be for a complained-of injury.”).
26
Bell v. N.H. Ins. Co., No. 07-138, 2008 WL 2308824, at *5 (E.D. La. June 3, 2008) (Lemelle, J.) (citing
Mendoza v. Mashburn, 747 So. 2d 1159, 1170 (La. App. 5th Cir. 1999)).
27
Bly, 589 So. 2d at 497.
28
Id. at 498 (“While there is no testimony in the record as to the cost of surgery, we do not find that the
amount of $15,000.00 is either unrealistic or unreasonable, and although we believe that the sum may be
on the high side, it is not so high as to constitute an abuse of discretion.”).
29
Id. As to this plaintiff, the court stated: “in the light of the record as a whole, and in the absence of any
evidence whatsoever of the probable cost of future medical care, or any estimate thereof, or any evidence
or basis on which an estimate could be made, or any evidence that a determination or estimate of future
cost could not be reasonably made,...any award to [the plaintiff] for future medical expense is blatant
speculation on the jury's part, a clear abuse of their ‘much discretion’ and clearly wrong or manifestly
erroneous.” 

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More recently, in Sosa v. Dollar General Corp.,30 the District Court for the Eastern
District of Louisiana denied a motion for partial summary judgment on future medical
expenses even though the plaintiff had not presented evidence regarding the possible
costs of future medical treatment. The court held that, despite the absence of summary
judgment evidence as to the costs of future medical treatment, “because Louisiana
appellate courts have previously allowed ‘reasonable’ awards for future damages even
where no medical testimony or evidence has been presented at trial to substantiate a
precise cost for such treatment, the Court declines here to grant summary judgment in
favor of Defendant on the issue of the need for future medical treatment or the cost
thereof.”31 The Court finds that the same result is warranted in the present case.
Accordingly, the Defendants’ Motion for Summary Judgment32 as to future medical
expenses is DENIED.
B. Lost Earnings/Loss of Future Earning Capacity
Plaintiffs concede that Banks has not “yet” lost wages as a result of the injuries
allegedly sustained in the accident at issue.33 Thus, having failed to submit any summary
judgment evidence to support a claim of past lost wages, the Plaintiffs’ claim for past lost
wages is dismissed with prejudice.
As to the loss of future earning capacity, at the time of the final submission of briefs
on this motion, discovery was incomplete.34 Because the full record was not developed
at that time, the Court finds that this issue is not ripe for summary judgment based on the

30

No. 15-1790, 2016 WL 1393504 at *5 (E.D. La. Apr. 8, 2016).
Id.
32
Rec. Doc. No. 34.
33
Rec. Doc. No. 45 at 7.
34
See Rec. Doc. Nos. 40 & 47. 
31

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existing pleadings. Accordingly, the motion for summary judgment on Banks’ loss of
future earning capacity is denied without prejudice to filing pretrial motions in limine if
appropriate.35
IV.

CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion for Partial Summary Judgment

on the Issue of Liability36 is DENIED. Defendants’ Motion for Partial Summary Judgment
on Plaintiffs’ Claims for Future Medical Expenses, Wage Loss, and Loss of Earning
Capacity37 is GRANTED in part and DENIED in part. Banks’ claim for past lost wages
is dismissed with prejudice.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 15th day of August, 2018.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

35

See Rec. Doc. No. 16.
Rec. Doc. No. 32.
37
Rec. Doc. No. 34. 
36

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