2021 WL 3185342
UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOT DESIGNATED FOR PUBLICATION
Court of Appeal of Louisiana, First Circuit.
KIERA CRAWFORD, INDIVIDUALLY AND ON BEHALF OF SANIYA CRAWFORD AND MALCOLM CRAWFORD
V.
SHELTER GENERAL INSURANCE COMPANY AND MATTHEW LABEE
2020 CA 0494
|
Judgment Rendered: JULY 28, 2021
On Appeal from the 19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Trial Court No. 643,773
Honorable R. Michael Caldwell, Judge Presiding
Attorneys and Law Firms
W. Paul Wilkins, Baton Rouge, Louisiana
Attorney for Plaintiff/Appellant, Kiera Crawford
Sallie C. Dupont, Kolby P. Marchand, Baton Rouge, Louisiana
Attorneys for Defendants/Appellees, Shelter General Insurance Company and Matthew Labee
BEFORE: McDONALD, HOLDRIDGE, AND PENZATO, JJ.
Opinion

PENZATO, J.

*1 Holdridge J, dissents with reasons

Plaintiff, Kiera Crawford, appeals a judgment rendered in accordance with a jury verdict, as well as a judgment notwithstanding the verdict and alternative motion for new trial, contending the jury erred in its award of general damages. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY
On December 15, 2014, Ms. Crawford was involved in a motor vehicle collision with a tractor-trailer driven by defendant Matthew Labee. Ms. Crawford was operating her vehicle, traveling in the eastbound right outside lane of Greenwell Springs Road in Baton Rouge, Louisiana, when Mr. Labee changed lanes and collided with Ms. Crawford’s vehicle. Ms. Crawford filed the instant suit against Mr. Labee and Shelter General Insurance Company, his insurer, seeking damages for personal injuries, including pain and suffering, mental anguish, lost wages, loss of enjoyment of life, property damage, and medical and other expenses.1 In January 2019, the case was tried before a jury. The jury concluded Mr. Labee was solely at fault in causing the December 15, 2014 accident and that Ms. Crawford sustained damages that were caused by the accident. The jury awarded Ms. Crawford $50,000.00 in past medical expenses2 and $1,000.00 for physical pain and suffering, past and future.3 The jury declined to make any award for future medical expenses, past and future mental anguish and distress, and loss of enjoyment of life. Judgment was signed on February 20, 2019, in accordance with the jury verdict. Arguing that the jury’s verdict regarding damages was not supported by the evidence presented at trial, Ms. Crawford filed a motion for judgment notwithstanding the verdict (“JNOV”) and/or motion for new trial, which the trial court denied by judgment signed August 8, 2019. Ms. Crawford appeals the trial court’s February 20, 2019 and August 8, 2019 judgments.

ASSIGNMENTS OF ERROR
Ms. Crawford urges the following assignments of error:
(1) The trial jury erred in its award for general damages.
*2 (2) The trial judge erred in applying the criteria used to grant or deny a JNOV.
(3) The trial jury manifestly erred in its award for damages, therefore, the trial judge should have granted Ms. Crawford’s JNOV.
(4) The trial judge abused its discretion in denying Ms. Crawford’s motion for new trial.

LAW AND DISCUSSION
A person injured through the fault of another is entitled to full indemnification for his resulting damages. See La. C.C. art. 2315; Mitchell v. Access Medical Supplies, Inc., 2015-0305 (La. App. 1 Cir. 11/9/15), 184 So. 3d 118, 120. It is the plaintiff’s burden to prove, by a preponderance of the evidence, the damages he suffered as a result of the defendant’s fault. Mitchell, 184 So. 3d at 120. A jury is given great discretion in its assessment of quantum, as to both general and special damages. See La. C.C. art. 2324.1; Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So. 3d 1104, 1116.

General damages are those which may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of gratification or physical enjoyment, or other losses of life or life-style which cannot be measured definitely in monetary terms. Waters v. Hebert, 2019-0435 (La. App. 1 Cir. 11/20/19), 291 So. 3d 278, 283.

Under La. C.C. art. 2324.1, a jury has much discretion in the assessment of general damages. However, when a jury awards special damages but declines to award general damages, a reviewing court must first determine whether the jury’s finding is so inconsistent as to constitute an abuse of its much discretion. McDowell v. Diggs, 2017-0755 (La. App. 1 Cir. 10/3/18), 264 So. 3d 489, 502.

Award of general damages
In her first assignment of error, Ms. Crawford contends that the jury erred in its award of general damages.

At trial, Ms. Crawford testified that the impact from the December 15, 2014 collision with Mr. Labee’s vehicle pushed her vehicle onto the curb. According to Ms. Crawford, immediately after the accident, she was frightened and concerned for her children, who were in the car with her, and drove to her aunt’s house. While at her aunt’s house, she began to feel pain in her neck, shoulder, and back, and went to Baton Rouge General Medical Center for assessment.

The records from Baton Rouge General Medical Center reflect that Ms. Crawford presented to the Emergency Room on December 15, 2014, complaining of left-sided neck pain, left lower back pain and left hand pain, secondary to being involved in a motor vehicle accident two hours prior to arrival. She was diagnosed with hand pain, cervical strain, and lumbar strain, prescribed 800 mg Ibuprofen, and advised to follow up with her primary care physician in 1-2 days.

On December 31, 2014, Ms. Crawford saw Dr. Mary Thomas at the Bluebonnet Family Clinic as a new patient. Ms. Crawford complained of back pain, which she indicated started after the December 15, 2014 accident. She also complained of headaches associated with high blood pressure. Vital signs included a body mass index of 42.9 and elevated blood pressure with the patient relating a prior history of elevated blood pressure. Ms. Crawford was noted as being morbidly obese. The physical examination on that date reflected that range of motion of the neck was normal. There was discomfort on palpation of the upper and lower back muscles, but range of motion was noted to be “fine.” Dr. Thomas prescribed a muscle relaxer and anti-inflammatory.

*3 Ms. Crawford returned to Dr. Thomas’s office on January 27, 2015 for a routine physical. Dr. Thomas’s records from that date indicate that Ms. Crawford complained of chronic back pain and that she was again prescribed a muscle relaxer and anti-inflammatory. She was also counseled on controlling her blood pressure and advised to start a low calorie diet. Examination of the spine revealed normal gait and posture; no spinal deformity; and symmetry of spinal muscles, without tenderness, decreased range of motion, or muscular spasm. On February 24, 2015, Ms. Crawford returned to Dr. Thomas’s office to update her vaccinations, and the medical record shows no mention of neck or back pain or the accident.

Ms. Crawford next sought treatment for her back pain on April 2, 2015, more than two months after her January 27, 2015 visit with Dr. Thomas. She saw Dr. Joseph Turnipseed, a specialist in interventional pain management. Ms. Crawford’s chief complaint was back pain; she indicated that her neck pain following the December 15, 2014 accident had resolved over time. Dr. Turnipseed adjusted her medications and referred her to Dr. Thomas Rathmann, chiropractor, for therapy.

Ms. Crawford’s initial consultation with Dr. Rathmann was on April 7, 2015. At this initial visit, Ms. Crawford advised Dr. Rathmann that she had been involved in a motor vehicle collision on December 15, 2014. She complained of neck, mid-back, lower back, and right knee pain. His diagnosis was cervical, thoracic, lumbar, and knee strain/sprain. Dr. Rathmann ordered magnetic resonance imaging (MRI) studies of her neck and back. Dr. Rathmann conservatively treated Ms. Crawford for approximately two months – from April 7, 2015 through May 26, 2015. He saw improvement during that time, especially to her thoracic spine. Her right knee pain resolved and her range of movement improved. According to Dr. Rathmann, while decreased, Ms. Crawford had some palpable neck and back tenderness the last time he treated her.

Ms. Crawford returned to Dr. Turnipseed on May 28, 2015. He had access to the results of the MRI scans of Ms. Crawford’s neck and back. The reports reflected a midline disc herniation superimposed on disc bulging at C5-C6 with a midline anterior fissure, and disc bulging at C3-C4 and C4-C5 with no stenosis. The lumbar results reflected mild disc bulging at L4-L5 with normal facet joints and no stenosis, and disc bulging at L5-S1 with early facet arthropathy, but no stenosis present. Dr. Turnipseed recommended a lumbar epidural steroid injection (“L-ESI”). Ms. Crawford underwent her first L-ESI on June 18, 2015, and received a second on October 23, 2015. Ms. Crawford also underwent a cervical epidural steroid injection (“C-ESI”) on October 23, 2015. Ms. Crawford experienced temporary relief in her neck, but no relief in her back from the injections. Dr. Turnipseed then performed a lumbar dural medial branch block and a lumbar radiofrequency ablation (“L-RFA”) in December 2015 for Ms. Crawford’s continued lower back pain. Ms. Crawford reported 60% relief from the L-RFA procedure. Dr. Turnipseed repeated the C-ESI on April 20, 2016, December 6, 2016, June 22, 2017, May 3, 2018, and November 26, 2018. He repeated the L-RFA on September 21, 2016, March 28, 2017, January 18, 2018, and August 2, 2018. Dr. Turnipseed testified at trial that Ms. Crawford was injured in the December 15, 2014 accident and opined that the pain she expressed since he began treating her in April 2015 was caused by the accident.

Medical records reflect that Ms. Crawford presented to a Lake After Hours clinic on October 2, 2015, during the time she was being treated by Dr. Turnipseed, with complaints of headache and nausea. She reported taking no medication at the time. Examination of the neck was normal, with full range of motion. Neurological and musculoskeletal exams were both reported as normal.

*4 The jury heard testimony from Dr. Richard Stanger, a neurosurgeon, who was retained by the defendants to perform an independent medical examination of Ms. Crawford. Dr. Stanger reviewed Ms. Crawford’s medical records and examined her on March 9, 2017. Based upon her history, Dr. Stanger opined that Ms. Crawford was injured in the December 15, 2014 accident. However, he testified that her physical examination reflected that she had good range of motion in her neck and back, no spasm, and her gait was normal. Dr. Stanger testified that overall, her musculoskeletal and neurological exams were normal. He testified that the MRI findings of the back reflected arthritic changes that predated the accident, with her obesity a component thereof. He testified that extreme obesity increases the stress on the muscles of the back and increases the risk of having back pain. Dr. Stanger indicated that it was possible that Ms. Crawford’s extreme obesity could increase the likelihood of her needing treatment for her low back even without the accident. He also testified that he could not say the imaging findings in the neck were related to the accident without having a prior study for comparison.

Dr. Jeremy Comeaux also testified concerning his independent examination of Ms. Crawford on September 14, 2017, at which time she provided a negative history of neck or back pain prior to the accident. The examination of her neck revealed mild discomfort at the mid-neck, some decreased range of motion and some tenderness to palpation. Neurologically she was intact. Examination of the back reflected tenderness to palpation and pain with extension. Otherwise, he testified that she had a normal neurological exam. He also opined that the MRIs of the back showed degenerative changes which pre-dated the accident and agreed that such degeneration was not surprising considering her weight. Degenerative findings were also present in her neck. He opined that the pain for which she received treatment was caused by the accident.

Conflicting evidence was introduced at trial regarding Ms. Crawford’s complaints of pain. On October 13, 2015 (eight days after a scheduled visit with Dr. Turnipseed), Ms. Crawford completed a “History and Physical Examination Form” in connection with her enrollment in Emergency Medical Technician (“EMT”) school. Ms. Crawford indicated that she was not taking any prescription medication, was not currently under the care of a physician, and did not have any disorder or disability that limited her physical activity or required special accommodations. She further denied currently having or having ever had any back injuries or any joint injuries and problems. The physical examination conducted on this date at Capital City Family Healthcare reflected no disorder of the spine. Ms. Crawford testified that she denied being treated for neck and back injuries on the “History and Physical Examination Form,” because she felt she would not be accepted to EMT school due to her history of neck and back pain.

Subsequently, in April of 2017, prior to her September 14, 2017 evaluation by Dr. Comeaux and during her treatment by Dr. Turnipseed, Ms. Crawford applied for a job as a cashier at Lucky Dollar Casino. She completed an application for employment, which included medical history questions. Ms. Crawford denied currently or previously having a back or neck injury. She further denied being presently under any medical treatment by a doctor, taking any medication, and having ever received treatment for her back, neck or knee from a doctor or chiropractor. Ms. Crawford testified that she was not truthful in her application because she “had to get a job at that time.”

Finally, testimony from Ms. Crawford concerning the impact that the accident and her alleged injuries had on her life was scant. At the time of the accident, she was working at Wal-Mart. Although she continued in that employment, she worked in pain and managed with medication. Thereafter, she started EMT school and ultimately completed the program in December of 2015, finishing as a certified EMT. She had no physical limitations while working as a basic EMT at Acadian Ambulance. She testified that the schedule at Acadian Ambulance did not work out due to her children, but also indicated that she had multiple issues with her employment, one being that she realized lifting was an issue for her. She indicated she would like to go back to school to become a paramedic and had started that process. After her employment at Acadian, she also worked at Lucky Dollar Casino, St. Gabriel Prison, and Northridge Healthcare Center.

*5 Upon consideration of the evidence presented, the jury concluded that the December 15, 2014 accident caused some injury to Ms. Crawford and awarded her $50,000.00 in past medical expenses. Ms. Crawford does not appeal this award. Rather, she argues that the jury’s award of $1,000.00 in pain and suffering, past and future, with no other award for general damages is improperly inconsistent. Alternatively, she argues that the award of $1,000.00 in general damages is abusively low and an abuse of the jury’s discretion.

In support of her argument, Ms. Crawford argues that a jury verdict awarding damages for treatment of pain and injury caused by an accident but failing to award a commensurate amount of general damages for the pain to which that treatment was addressed is, except in rare circumstances, an inconsistent verdict, citing Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So. 2d 70. In Wainwright, 774 So. 2d at 76, the Louisiana Supreme Court acknowledged that as a general proposition, such a jury verdict may be illogical or inconsistent, but held that it is not, as a matter of law, always erroneous. The court explained:
[A] jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant’s fault. It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.
Id. The Wainwright court held that damage awards are dependent on the particular facts of the case and “there is no bright line rule at work.” Id.

Based on the entirety of the evidence presented, the jury could have reasonably questioned Ms. Crawford’s veracity and discounted her testimony with regard to her pain and suffering. The medical records indicate that she made inconsistent complaints of pain to various healthcare providers. While she complained of neck and back pain at the Emergency Room on December 15, 2014, when she presented to Dr. Thomas approximately two weeks later, her complaints were only of back pain. Following her January 27, 2015 appointment with Dr. Thomas, she did not seek medical attention for her back pain until she presented to Dr. Turnipseed on April 2, 2015, over two months later. Ms. Crawford pointed to no interim complaints to or treatment by physicians for injuries she allegedly sustained in the accident. On April 2, 2015, she indicated that the neck pain she experienced following the December 15, 2014 accident had resolved. Thereafter, on April 7, 2015, she advised Dr. Rathmann that she was experiencing neck and back pain, as well as knee pain. Dr. Rathmann testified that Ms. Crawford improved during the two months he treated her. On October 13, 2015, Ms. Crawford denied having any back injuries in a form she completed in connection with her enrollment in EMT school, and her physical examination was ultimately reported as negative. On October 23, 2015, Dr. Turnipseed performed both a lumbar and cervical ESI. She continued treatment with Dr. Turnipseed throughout 2016, and underwent a L-RFA in March of 2017. In April of 2017, Ms. Crawford again denied having a back or neck injury or receiving treatment for such in an application for employment.

*6 Here, the jury was in the best position to evaluate Ms. Crawford’s credibility and to see the evidence firsthand. Mitchell, 184 So. 3d at 120. The jury heard Ms. Crawford admit that she lied about her medical condition on both a school application and on a job application. As noted above, the jury also heard evidence that Ms. Crawford gave inconsistent medical histories to medical providers and at least one physician opined that her pre-existing health conditions could have contributed to any general damages she sustained. Thus, based on this evidence, the jury could have reasonably doubted Ms. Crawford’s credibility and discounted the medical evidence supporting her claim for general damages. Further, Wainwright and its progeny confirm that even a special damage award with no general damage award is not always an abuse of discretion. A fortiori, a special damage award with a low general damage award, as here, would even less likely be an abuse of discretion. See, e.g., Mitchell, 184 So. 3d at 120-21; Harris v. Soulier, 2013-1245 (La. App. 1 Cir. 5/2/14), 2014 WL 3557481, at *6 (unpublished). Thus, we find the jury did not abuse its discretion in its award of general damages and affirm the trial court’s February 20, 2019 judgment.

JNOV and Motion for New Trial
In her remaining assignments of error, Ms. Crawford contends that the trial court erred in applying the criteria used to grant or deny a JNOV, in failing to grant a JNOV in this case, and in denying her motion for new trial.

A JNOV is a procedural device authorized by La. C.C.P. art. 1811, by which the trial court may modify the jury’s finding of fault or damages, or both, to correct a legally erroneous jury verdict. See La. C.C.P. art. 1811F; Barnett v. Woodburn, 2020-0675 (La. App. 1 Cir. 4/16/21), ___ So. 3d ___,___, 2021 WL 1440376, at *6. A motion for new trial may be joined with a motion for judgment notwithstanding the verdict, or a new trial may be prayed for in the alternative. See La. C.C.P. art. 1811. A JNOV is warranted when the facts and reasonable inferences point so strongly and overwhelmingly in favor of the moving party that the court believes that reasonable jurors could not arrive at a contrary verdict, not merely when there is a preponderance of evidence for the mover. Davis v. Wal-Mart Stores, Inc., 2000-0445 (La. 11/28/00), 774 So. 2d 84, 89; Barnett, 2021 WL 1440376, at *6. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. Davis, 774 So. 2d at 89. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Id. When the trial court denies a JNOV, the appellate court simply reviews the record to determine whether there is legal error or whether the trier of fact committed manifest error. Barnett, 2021 WL 1440376, at *6.

We found that the jury’s verdict regarding damages was supported by the record and was not an abuse of discretion. Thus, the trial court’s denial of Ms. Crawford’s motion for JNOV and/or motion for new trial was not manifestly erroneous. Accordingly, we affirm the trial court’s August 8, 2019 judgment.

CONCLUSION
For the above and foregoing reasons, we affirm the February 20, 2019 and August 8, 2019 judgments. Costs of the appeal are assessed to Kiera Crawford.

AFFIRMED.

HOLDRIDGE, J., dissents.

I respectfully dissent in this case. It is my opinion that based on the entire record, the jury’s determination that Ms. Crawford was entitled to $50,000.00 in medical expenses, but only $1,000.00 in general damages, is so inconsistent as to constitute an abuse of discretion. The jury determined that the medical treatment Ms. Crawford sought to alleviate her neck and back pain was causally related to the accident. To make that causation determination, the jury had to find that Ms. Crawford’s complaints of neck and back pain were credible. Having made that determination, it was entirely inconsistent for the jury to find that Ms. Crawford was entitled to only $1,000.00 in general damages, given the extent of the medical treatment Ms. Crawford underwent to alleviate the pain the jury related to the accident in awarding her $50,000.00 in medical damages. Furthermore, the defendant did not appeal the award of $50,000.00 in medical expenses. Therefore, the option of reducing the award for medical expenses to correlate with the general damages award is not available to this court. For these reasons, I would find the jury abused its discretion in awarding only $1,000.00 in general damages under all of the circumstances of this case.

All Citations
Not Reported in So. Rptr., 2021 WL 3185342, 2020-0494 (La.App. 1 Cir. 7/28/21)

Footnotes

1
Ms. Crawford filed suit in both her individual capacity and on behalf of her minor children, who were in the car at the time of the accident. The claims of her children were dismissed by judgment signed May 16, 2017.

2
The $50,000.00 awarded to Ms. Crawford for past medical expenses did not reflect the full amount she sought.

3
The jury initially returned a verdict with no award for physical pain and suffering. Thereafter, the trial court instructed the jury as follows:
Ladies and gentlemen … you have found that some damages were caused by the accident, and you have awarded some amount in medical expenses. Our law requires that when that happens there has to be a – some award. It doesn’t say how much, but there has to be some award for at least some part of what we call general damages, which are …: the physical pain and suffering, mental pain and anguish, and the loss of enjoyment of life. … So, I’m going to ask that y’all go back in and reconsider. … Thank you.

2021 WL 3666595

This case was not selected for publication in West’s Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S. Ct. of App. 11th Cir. Rule 36-2.
United States Court of Appeals, Eleventh Circuit.
ALVIN WALKER, Plaintiff-Appellant,
v.
ERGON TRUCKING, INC., RICHARD MCGINNIS, Defendants-Appellees.
No. 20-14743
|
(August 18, 2021)
D.C. Docket No. 1:18-cv-00594-ACA
Appeal from the United States District Court for the Northern District of Alabama
Before MARTIN, JORDAN, and GRANT, Circuit Judges.
Opinion

PER CURIAM:

*1 Alvin Walker appeals the district court’s decision to exclude his expert’s opinion as well as its grant of summary judgment to Richard McGinnis and Ergon Trucking, Inc. After careful consideration, we affirm both rulings.

I. BACKGROUND
This case arises out of a motor vehicle accident between Walker’s car and a commercial tractor-trailer truck driven by McGinnis. The accident occurred on the evening of February 13, 2017, at the intersection of U.S. Highway 280 and Coosa Street in Sylacauga, Alabama. Right before the accident, McGinnis was driving in the right-hand lane on Highway 280 towards Coosa Street. He was driving right around 59 miles per hour, just over the posted speed limit of 55 miles per hour. McGinnis had a green traffic light as well as the right of way at the intersection. The parties dispute whether McGinnis looked around and saw any potential hazard as he approached the intersection.

As McGinnis drove through the intersection, Walker turned right off of Coosa Street to merge onto Highway 280. Highway 280 has a designated lane for merging onto the highway from Coosa Street. However, instead of using the designated lane, Walker immediately entered McGinnis’s lane, and the two vehicles collided less than a second later. Walker did not use his turn signal or otherwise indicate he might enter McGinnis’s lane. Walker looked “straight ahead” and did not look for approaching traffic on Highway 280, even though he knew he was required to yield to the right of way. McGinnis’s dash cam recorded the accident.

In March 2018, Walker and his wife Bobbie Jo1 sued McGinnis and his employer, Ergon Trucking (collectively “Defendants”), in Alabama state court. Defendants removed the case to federal court based on diversity jurisdiction. In the operative complaint, Walker brought claims of negligence, subsequent negligence, and wantonness against McGinnis and sought to hold Ergon Trucking vicariously liable for McGinnis’s conduct. Walker alleged McGinnis failed to keep a proper lookout, maintained an unreasonable and imprudent speed, failed to warn Walker with his horn, did not keep his truck under control, and failed to brake or change lanes. Walker also alleged McGinnis’s conduct caused various injuries and sought damages for medical expenses and emotional distress, among other things.

During discovery, Walker disclosed safety consultant Whitney Morgan as an expert witness. Defendants ultimately moved to exclude Morgan’s opinion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). The district court granted Defendants’ motion, finding Morgan’s opinion inadmissible under Daubert for three reasons. First, the court found Morgan was not “qualified to offer an opinion on the proper operation of a tractor-trailer,” the issue on which he was to testify. Second, the court found that the methodology Morgan used to reach his opinion, which included relying on a commercial driver’s license manual, was not reliable because there was no indication other experts in the field would also use that methodology. Finally, the court found Morgan’s opinion did “not offer any insights beyond the understanding of the average lay person and would not be helpful to the factfinder.” Separately, the court stated, even assuming Morgan’s opinion was admissible under Daubert, it was inadmissible under Federal Rule of Evidence 403 because the opinion’s risk of confusion or misleading the jury substantially outweighed its probative value. Specifically, the court noted Alabama law says a driver may presume others will obey traffic laws and, contrary to that rule, Morgan’s opinion created the impression that McGinnis had an affirmative duty to anticipate Walker’s failure to use the designated lane for merging.

*2 In addition to their challenge to Walker’s expert, Defendants also moved for summary judgment on all claims. The district court granted that motion as well. For Walker’s negligence claim, the district court found McGinnis did not breach any duty. Alternatively, the court found that even if McGinnis had breached a duty, Walker’s own negligence contributed to his injuries, which is a complete defense to negligence under Alabama law. And while noting that subsequent negligence by a defendant allows a negligent plaintiff to avoid a contributory negligence defense, the court found that rule did not apply here because the accident occurred “within the same second” that it became apparent Walker was entering McGinnis’s lane. Finally, the court found Walker’s wantonness claim failed because there was no evidence McGinnis acted with the requisite consciousness.

Walker thereafter appealed the district court’s decisions excluding Morgan’s expert opinion and granting summary judgment to Defendants.

II. STANDARDS OF REVIEW
We review evidentiary rulings, including Daubert rulings, for abuse of discretion. United States v. Pon, 963 F.3d 1207, 1219 (11th Cir. 2020). We review de novo a district court’s decision granting summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Belcher Pharms., LLC v. Hospira, Inc., 1 F.4th 1374, 1379 (11th Cir. 2021). Summary judgment is proper “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.” Fed. R. Civ. P. 56(a).

III. DISCUSSION
We start with the district court’s decision to exclude Morgan’s expert opinion. We then turn to the district court’s decision to grant summary judgment in favor of Defendants.

A. Evidentiary Ruling
Walker argues the district court abused its discretion in excluding Morgan’s expert opinion under Daubert. According to Walker, Daubert does not apply to non-scientific experts like Morgan. He also argues Morgan was qualified, relied on various pieces of information for his opinion, and provided an opinion helpful to the trier of fact.

As an initial matter, we need not decide whether the district court abused its discretion in excluding Morgan’s expert opinion under Daubert because Walker does not challenge the district court’s other independent ground for excluding the opinion. Namely, after addressing Daubert, the district court found, even if Morgan’s opinion was admissible under Daubert, it would still be properly excluded under Rule 403. Walker’s failure to challenge this independent ground on appeal means he has “abandoned any challenge of that ground, and it follows that the judgment is due to be affirmed.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

But even if we were to reach the question of whether the district court abused its discretion in excluding Morgan’s expert opinion under Daubert, we would affirm on that basis as well. Contrary to Walker’s assertion, it is well established that Daubert applies to non-scientific experts. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S. Ct. 1167, 1171 (1999). And under Daubert, this Court applies a “rigorous three-part inquiry” that considers whether:
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1194 (11th Cir. 2010) (quotation marks omitted). The party putting forward the expert testimony “bears the burden of showing, by a preponderance of the evidence, that the testimony satisfies each prong.” Id.

*3 Walker has not carried his burden. Assuming Morgan was qualified and his opinion was helpful to the trier of fact, Walker has not shown Morgan’s methodology was reliable in this case. When considering the reliability of an expert’s methodology, we look to several factors, including: “(1) whether the methodology can be and has been tested, (2) whether the theory or technique has been subjected to peer review, (3) the known or potential rate of error of the methodology employed, and (4) whether the methodology is generally accepted.” Hughes v. Kia Motors Corp., 766 F.3d 1317, 1329 (11th Cir. 2014).

In his expert report, Morgan repeatedly quoted various instructions from the commercial driver’s license manual and then discussed whether McGinnis followed each instruction based on deposition testimony from McGinnis and Ergon Trucking’s director of safety and compliance. Based on this analysis, Morgan opined that “McGinnis’[s] actions and/or inactions, as well as his lack of knowledge and skill in the safe operation of [commercial motor vehicles], demonstrated a conscious disregard for the safety of other motorists.” Morgan never addressed, and Walker does not discuss on appeal, whether Morgan’s methodology was tested, whether it was subject to peer review, whether it was generally accepted, or how it was otherwise reliable. See id. (listing the relevant factors for considering the reliability of a methodology). On this record, Walker has not shown Morgan’s methodology was reliable under Daubert, and thus the district court did not abuse its discretion in excluding the expert opinion.

B. Summary Judgment Ruling
Walker next argues the district court erred in granting summary judgment in favor of McGinnis on his claims of negligence, subsequent negligence, and wantonness.2 We address each claim in turn.

1. Negligence Claim
Under Alabama law, a negligence claim “requires the establishment of a duty and a breach thereof that proximately caused damage to the plaintiff.” S. Coast Props., Inc. v. Schuster, 583 So. 2d 215, 217 (Ala. 1991). Relevant here, a driver has a duty to “keep a reasonable lookout for danger or obstructions while driving along the public road.” Holley v. Josey, 82 So. 2d 328, 332 (Ala. 1955). Even so, a driver “approaching an intersection may presume that others will obey the traffic laws,” and there is no duty to “keep a special lookout for other vehicles when a driver is observing the rules relating to traffic signals.” Pearson v. Fountain, 189 So. 2d 551, 553 (Ala. 1966). Beyond that, in certain circumstances a violation of a statute or an ordinance can amount to negligence per se. See Parker Bldg. Servs. Co. v. Lightsey ex rel. Lightsey, 925 So. 2d 927, 930–31 (Ala. 2005).

Even if the plaintiff establishes a negligence claim, the defendant has a “complete defense” to that claim if he can show the plaintiff was contributorily negligent. Serio v. Merrell, Inc., 941 So. 2d 960, 964 (Ala. 2006). A contributory negligence defense requires the defendant to show the plaintiff: (1) knew of the dangerous condition, (2) appreciated the danger under the surrounding circumstances, and (3) failed to exercise reasonable care by placing himself in the way of danger. Id. However, “[d]irect evidence of such an appreciation of danger is not required if the evidence admits of no conclusion except that the plaintiff must have appreciated the hazard involved.” Id. at 965. In such a situation, it is “enough if the plaintiff understood, or should have understood, the danger posed.” Id. In Serio, the Alabama Supreme Court affirmed summary judgment for the defendant because the plaintiff was contributorily negligent by merging onto a public highway in the path of an oncoming truck with the right of way that she would have seen had she looked for oncoming traffic before or as she merged. Id. at 965–66. The Alabama Supreme Court deemed it “self-evident” that the plaintiff should have “consciously appreciated that danger.” Id. at 965.

*4 Walker argues McGinnis was negligent by speeding in violation of the posted speed limit and by failing to maintain a proper lookout, slow down, warn of his presence, and change lanes. But even assuming McGinnis was negligent, the record shows Walker was contributorily negligent because he merged right into McGinnis’s truck. Several undisputed facts bear this out. While merging onto Highway 280, Walker immediately entered McGinnis’s lane, even though there was a designated lane for safely merging onto the highway. Walker did not use his turn signal or otherwise indicate he might enter McGinnis’s lane. Walker looked “straight ahead” and did not look for approaching traffic, even though he knew he was required to yield to the right of way. As in Serio, it is “self-evident” Walker consciously appreciated the danger of his conduct and failed to exercise reasonable care by placing himself in the way of danger. See Serio, 941 So. 2d at 965–66. And because Walker was contributorily negligent, McGinnis had a “complete defense” to Walker’s negligence claim. See id. at 964. The district court therefore correctly found McGinnis was entitled to summary judgment on this claim.

2. Subsequent-Negligence Claim
To show subsequent negligence, the plaintiff must demonstrate: (1) the plaintiff was in a perilous position, (2) the defendant had knowledge of the plaintiff’s peril, (3) the defendant, armed with such knowledge, failed to use reasonable and ordinary care in avoiding the accident, (4) the use of reasonable and ordinary care would have avoided the accident, and (5) the plaintiff was injured as a result. Zaharavich v. Clingerman ex rel. Clingerman, 529 So. 2d 978, 979 (Ala. 1988). Contributory negligence is not a defense to a claim of subsequent negligence. Id. However, a claim of subsequent negligence is unavailable where the plaintiff’s peril and the accident are “virtually instantaneous.” Baker v. Grantham, 585 So. 2d 896, 897 (Ala. 1991).

Walker argues McGinnis was subsequently negligent because he “fail[ed] to take appropriate steps to recognize the peril and avoid the collision.” However, Walker’s peril and the accident were “virtually instantaneous,” so a claim of subsequent negligence is not available to Walker. See id. Specifically, Walker was not in peril until he entered McGinnis’s lane, and it is undisputed the two vehicles collided less than a second later. McGinnis thus could not have been subsequently negligent during that brief instant of time. The district court therefore correctly granted summary judgment to McGinnis on this claim.

3. Wantonness Claim
Wantonness is “the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result.” Ex parte Essary, 992 So. 2d 5, 9 (Ala. 2007). While speeding alone does not amount to wantonness, speeding together with other circumstances may. Hicks v. Dunn, 819 So. 2d 22, 24 (Ala. 2001). Under Alabama law, there is a rebuttable presumption that, unless his judgment is impaired, a driver does not act wantonly in causing a car accident. See Thomas v. Heard, 256 So. 3d 644, 657–58 (Ala. 2017) (per curiam). That is because humans “act in their own self-interest,” and thus the driver has “no consciousness that an injury would likely occur from his actions because presumably he would not engage in activity that would knowingly result in harm to himself.” Id. at 658.3

Walker argues McGinnis acted wantonly by speeding and by failing to see Walker, slow down, stop the truck, and warn of his presence. The record does show McGinnis was (barely) speeding, but even assuming he was consciously speeding (which is not clear), speeding alone is not enough to show wantonness. Hicks, 819 So. 2d at 24. And while Walker argues McGinnis also failed to see him and react accordingly, there is no record evidence McGinnis did so consciously, let alone McGinnis was conscious that injury would likely result from those omissions. See Essary, 992 So. 2d at 9. As such, Walker has not shown McGinnis acted wantonly leading up to the accident. The district court therefore correctly found McGinnis was entitled to summary judgment on Walker’s wantonness claim.

IV. CONCLUSION
*5 The district court did not abuse its discretion in excluding Morgan’s expert opinion and correctly granted summary judgment in favor of McGinnis on all of Walker’s claims.

AFFIRMED.

All Citations
— Fed.Appx. —-, 2021 WL 3666595

Footnotes

1
Bobbie Jo did not appeal the district court’s decisions, so we address only Walker’s claims here.

2
Walker does not raise his vicarious liability claims against Ergon Trucking in his appeal. This means he has abandoned these claims and we cannot consider them. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).

3
Unlike a negligence claim, “[c]ontributory negligence is not a defense to a claim based on wantonness.” Gulf States Steel, Inc. v. Whisenant, 703 So. 2d 899, 907 (Ala. 1997).